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The Supreme Court affirmative action hearings: a guide for the overwhelmed

November 11, 2022 , By Kathy Dawley, Managing Director, Partner Success, Enroll360

The large volume of commentary generated by the recent Supreme Court hearings on affirmative action, while undoubtedly helpful, important, and interesting, has understandably left some enrollment leaders overwhelmed. Today’s post offers a briefing on key takeaways and a quick guide to the most consequential points in the debate, including practical implications for enrollment teams.

The situation in brief

To recap some basics, on October 31 the Supreme Court heard arguments related to lawsuits that Students for Fair Admissions (SFFA) brought against Harvard College and the University of North Carolina, in connection with these institutions’ race-conscious admissions practices.

In 2014, lower courts ruled in the schools’ favor, finding that their policies complied with Supreme Court precedents. SCOTUS’ current deliberations are considering whether those precedents themselves should be overturned. Such a move would reverse four decades of the Court’s repeated reaffirmation of these precedents and could greatly complicate the consideration of race in admissions decisions, to the point of potentially rendering any such practice illegal or unworkable in practical terms. It might also create headaches for a larger range of colleges and universities beyond the relatively small number that currently make use of explicitly race-conscious admissions policies.

Actionable guidance from the Court, on which any definite response on the part of colleges and universities must depend, will likely not be available until June of 2023.

What will the future bring?

While we won’t know the outcome of the Court’s deliberations for some months, it is helpful to speculate on possible outcomes, even if that speculation does not provide a robust basis for decisive action in the near term.

One thing on which most observers agree is that the Court will likely declare affirmative action unconstitutional. As Stanford law professor Richard Thompson Ford has suggested, “It’s enough to count the justices nominated by Republican presidents to predict the court’s decision. Legal analysis is beside the point.” “Still,” as he goes on to say “legal analysis matters, even when it’s a fig leaf for politics.” For higher education leaders, it matters in part as a tool for helping imagine potential responses to the Court’s ultimate decisions, whatever they might be. In that spirit, the text that follows reflects on key points discussed in the October 31 hearings and related context.

A radical stance

One insight from the hearings is just how deep the conservative justices’ antipathy toward race-conscious admission goes, and how far they deviate from established norms in this regard-evident in comments such as Justice Thomas’ claim that he “has no clue” what diversity means or Justice Kavanagh’s opinion that the consideration of race in admissions is “potentially dangerous.” Underlying their hostility is a particular attitude toward “discrimination;” their commentary suggests a perspective in which the use of race-based considerations in college admissions is indistinguishable from, say, race-based school segregation. (source)

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“What has been contested since [Brown v. Board of Education] is what, exactly, ‘discrimination on the basis of race’ means. For conservative Justices, it appears to mean taking account of race in any way, even to remedy the effects of prior discrimination.”

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Jeannie Suk Gersen

Harvard Law School

A spectrum of possible outcomes

Another important insight reinforced by the hearings is that the Court’s deliberations are unlikely to result in simple “yes/no” answers. Rather, possible outcomes exist on a spectrum, memorably characterized by Marie Bigham, Founder and Executive Director of ACCEPT, in a recent NACAC webinar as “glass half full, glass half empty–and glass smashed.”

An example of an outcome at the mildest end of the spectrum would be the Court permitting admissions processes to be race-aware but with incremental restrictions and a more limited range of safe havens.

In-between scenarios might entail more far-reaching, and perhaps more ambiguous, restrictions on considerations of race-ones whose very vagueness could amplify the chilling effect of the ruling on related practices. Lacking specific guidance, colleges’ general counsels might, understandably, err on the side of caution, with the associated risk of oversteering.

The worst-case scenario would entail the Court taking an extreme stance akin to its recent overruling of Roe v. Wade, potentially resulting in a ban on any consideration of race in admissions.

A practical impossibility

The complex implications of a total ban generated a lot of discussion during the hearings and raised questions about the basic feasibility of race-blind applicant assessment. What, for example (citing a hypothetical discussed in the already-mentioned NACAC webinar), would it mean for a student to submit a letter of recommendation from her AME church pastor-something that would effectively identify her as a Black applicant?  Similar questions would apply to a host of other proxies for race that it would presumably be impossible to scrub entirely from admissions processes.

One reason this matters is that a ban on race-awareness in admissions would appear to extend potential legal jeopardy beyond the relatively small group of highly selective institutions that currently make use of race-conscious approaches to all colleges and universities, since any applicant to any school might have information in their profile that is a marker of race.

Perhaps realizing the practical impossibility of truly race-blind admissions processes, SFFA’s lawyers agreed that colleges might be allowed to consider an applicant’s race or “heritage” insofar as it contributes to an understanding of the student as a unique individual, and as long as the applicant is not specifically credited for their race. Several observers have noted the flimsiness of this “distinction without a difference” and speculated on a future in which colleges are forced to proceed via subterfuge, assigning favor based on proxies for race rather than on a candid and transparent policy of preferentially promoting historically disadvantaged racial groups. As discussed below, some would argue that this has already been happening under the guise of “diversity”-focused student recruitment. (source)

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"One can reasonably anticipate that colleges will seek to maintain their minority enrollment whether or not they can do so in full candor through adoption of affirmative action plans. Without recourse to such plans, they may resort to camouflage--for example, encouraging applicants to write of their cultural traditions in the essays they submit."

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Ruth Bader Ginsburg

Paraphrase from her dissenting opinion in Gratz v. Bollinger

“Diversity” as suboptimal workaround

The hearings were also a reminder of the role that legal precedents have played in suppressing discussion of racial justice in admissions policy, even as those precedents affirmed colleges’ right to promote diversity.

The Supreme Court ruling on Regents of the University of California v. Bakke, the first of the precedents on which contemporary race-conscious admissions practices are based, included an opinion from Justice Lewis F. Powell that affirmative action would be unlawful if the reason a university adopted it was to correct the racial injustices of society. Crucially, Lewis added that affirmative action could be permissible if it was designed to achieve the pedagogical benefits that come with a diverse student body. This, as Thompson Ford has suggested, “was the birth of the modern idea of diversity.”

It is also the source of a disconnect between the implicit aims and explicit practice of racially aware admissions that persists until this day. Redressing America’s history of racism is, as Thompson Ford has argued, both a more compelling and more specific reason for the consideration of race in admissions than is diversity considered as an “educational good.” Affirmative action is, as he points out, “hard to understand and harder to defend without reference to racism.”  While social-justice goals are clearly implicit in many schools’ diversity efforts, their progress is hobbled by the prohibition against explicitly acknowledging these goals and building processes tailored to them. (source)

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“Despite incredibly valiant, sustained efforts to navigate the realities of a post-affirmative action world, the flagship campuses in California and Michigan have been unsuccessful in enrolling members of marginalized racial groups.”

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Justin Driver

Yale Law School

How big a difference this kind of prohibition makes is evident from the experience of the University of Michigan and University of California systems, which were forced by changes in state law to discontinue their race-conscious admissions practices. Both systems have since been unable to sustain desired levels of Black and other underrepresented-student enrollment, despite having implemented workarounds costing hundreds of millions of dollars.

Even so, much of the discussion in the Supreme Court hearings, and the resulting commentary, started with the given of diversity as the sole legitimate motivating aim of race-conscious admissions processes, and unfolded within the constraints set by that assumption.

What can enrollment leaders do?

Given the potentially profound impact of the coming rulings, enrollment leaders are naturally wondering what they can do to prepare.

The most appropriate course of action will depend on the unique profile of any given school, including the core student populations it serves. Some access-focused institutions already enroll disproportionately high numbers of underrepresented students, without using race-conscious admissions strategies. Many other institutions are admitting more underrepresented students than they are enrolling, with their unaffordability for lower-income students often accounting for the gap. It is the nation’s most selective schools, which are also the most dependent on race-conscious practices for enrolling underrepresented students, which will ultimately be most vulnerable to Supreme Court decisions.

Unfortunately, as noted above, decisive action is not possible in advance of the particulars of the rulings being known-i.e., probably not before June of 2023. That said, there are things you can do to ensure you’re spending the intervening months productively.

One is to familiarize yourself with the broader issue set and legal context-something this post has aimed to help with. Educating yourself on the fundamentals will help you hit the ground running once the Supreme Court’s decisions are released and will make you better able to imagine creative solutions regardless of what conclusions it reaches.

A great place to start is familiarizing yourself with race-neutral admissions approaches-specifically ones that, while not conferring distinct benefits on students based on their race, are still able to on the enrollment of Black and other underrepresented student populations. Examples include programs designed specifically to engage low-income and first-generation students. While there is no guarantee that the Supreme Court’s decisions will not also complicate approaches that depend on proxies of race, and while such approaches have generally proven not to be as effective as ones that acknowledge race explicitly, they may constitute the best available option within a limited field of possibilities.

 

It is also a good idea to take stock of your current practices, with the aim of creating a clear and comprehensive picture of potential vulnerabilities-for example (as suggested by Art Coleman at this year’s College Board Forum), making an inventory how race shows up in all things admissions and financial aid at your institution, from your applicant-review process to visit programs for underrepresented communities to scholarships that confer benefits based on students’ race or ethnicity.  Establishing an underrepresented-student-recruitment working group that spans key functional areas in your institution, including admissions, financial aid, and early college programming, can help with this and other related work.

A prominent role for holistic assessment

One hallmark of lower-risk approaches to the consideration of race in admissions is the comprehensive view they take of candidates. Past Supreme Court rulings have treated the consideration of race as most problematic when it carries outsize weight relative to other student characteristics or when race is used as a basis for “automatically” assigning preference. This problem can be mitigated by ensuring that admissions rubrics give even weight to a broader set of student characteristics. (source)

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“There is a potentially important distinction to be made between considering the racial status of an applicant and their identity — an applicant’s authentic, lived experience and perspective, evident through holistic review.”

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Art Coleman

EducationCounsel

Notably, the desirability of a complete assessment of prospective students is one point that nobody on either side of the debate seems inclined to challenge. Furthermore, and separately from considerations debated in the hearings, the national move to test optionality has further emphasized the importance of comprehensive candidate assessment (even as it has taxed some understaffed admission teams’ capacity).

 If there is a silver lining to the Supreme Court hearings it is perhaps the small role that they played in underscoring this view of the prospective student as a whole person.

Kathy Dawley

Kathy Dawley

As Managing Director of Partner Success, Kathy oversees a portion of the EAB undergraduate enrollment services portfolio managing a team of Strategic Leaders and Financial Aid Principals in pursuit of partner retention and revenue growth resulting from long-term relationships and enrollment health. She is devoted to connectedness across EAB, focusing on any possible integrations, alignments, and synergies across the firm to benefit partners.

Before joining EAB in 2016, Kathy served as President of Maguire Associates for 17 years, working with higher education boards, presidents, leadership councils, and departmental teams to plan and achieve their strategic and operational goals.

Kathy is a devoted grandmother of two, an avid hiker, and a dog lover. She cherishes most her three-decade-plus marriage to her husband, Peter.

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