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As Supreme Court Prepares for Affirmative Action Cases, Experts Analyze What’s Coming

As the Supreme Court prepares to hear two related cases that could re-shape or ban affirmative action in America, New York University’s Steinhardt Institute for Higher Education Policy convened a panel of experts to discuss the legal battle and what might happen next. 

The cases, challenging race-conscious admissions practices at Harvard and the University of North Carolina (UNC), were filed by Students for Fair Admissions (SFFA), a non-profit organization that seeks to eliminate race as a factor in college acceptances. The Harvard lawsuit argues that the university is applying a soft racial quota to Asian-Americans by systematically rating them lower in evaluations of personal traits in comparison to other racial and ethnic groups. This, the suit says, has kept the percentage of Asian-Americans in Harvard’s undergraduate classes consistent, even as more Asian-Americans have applied. 

In the UNC case, SFFA is challenging an admissions policy that factors in race which it says disadvantages Asian-American and white applicants. SFFA argues that UNC did not prove that using a race-neutral alternative would have caused a large drop in academic quality or in the educational benefits of a diverse student body.  

The panelists differed in their views of the cases’ prospects before a Supreme Court with a 6-3 conservative majority.  Dr. Mike Hoa Nguyen, assistant professor of education at Steinhardt Institute of Higher Education PolicyDr. Mike Hoa Nguyen, assistant professor of education at Steinhardt Institute of Higher Education Policy

Although he described himself as “anxious” about the ruling, Dr. Mike Hoa Nguyen, an assistant professor of education at Steinhardt, said that stranger things have happened than a ruling that upholds affirmative action. 

Dr. Ann Marcus, director of the Steinhardt Institute and the panel’s moderator, agreed that a surprising result was possible. She remembered wide-spread pessimism during the Supreme Court’s last affirmative action case, 2015’s Fisher v. Texas, but noted that the court upheld race-conscious admissions.  

For Dr. Stella Flores, an associate professor in the department of educational leadership and policy at the University of Texas at Austin, the outlook was gloomier. 

“Given the makeup of the court, we’re assuming that [affirmative action] will be retracted, she said. 

Flores said that a national ban on the practice is possible or that the decision could be left to the states, akin to what has happened with abortion. If that occurs, Flores believes that solutions for diversity will need to vary widely because of differences in the forms of educational inequality experienced in each state.  

However, Flores argued that the states themselves may not be the key factor in efforts to diversify college classes. 

“Institutions are going to have to be the heroes for increasing and maintaining diversity,” said Flores. “It’s going to matter tremendously who are going to be the leaders of those institutions, who do [they] hire, who’s at the admissions table. You need diversity in that place and all forms of leadership as well.” 

But the panel agreed that without affirmative action, maintaining campus diversity will be hard. 

“We need this federal law. If we don’t have it, there’s going to be a dismantling of opportunity,” said Flores. 

She cited a study by Mark Long of the University of Washington which found that in states that had enacted bans on affirmative action, such as California and Michigan, minority representation at public universities declined compared to demographic trends in the population of high school graduates. Strategies that universities employed to increase diversity in lieu of affirmative action, such as using socioeconomic factors in admissions, improving outreach and financial support for low-income students, and eliminating legacy admissions failed to duplicate the effects of race-conscious admissions. 

“Race-neutral admissions policies do not work to increase racial and ethnic diversity,” said Flores. Social science has settled this question. Yet, we still keep coming back to it.” 

“The color-blind approach is deceptively attractive,” she said. “It frees us from acknowledging the nation’s past and present patterns of discrimination and inequality. Color-blind policies help groups in power feel less responsible for their privilege and harm minority groups by creating distrust, stereotype threat, and other negative outcomes. We need to boldly acknowledge that we are not living in a color-blind society and that we never truly have been doing so.” 

Jon Edelman can be reached at [email protected].

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