Reflections on the SCOTUS Killing Race-Based Affirmative Action in College Adminssions

My graduation from the UH chemical engineering program in May 2003.

After lots of speculation, the Supreme Court of the United States (SCOTUS) ended race-based affirmative action in college admissions. This decision is one of a number of decisions that were issued last week, where the Court's 6 conservative justices struck down policies meant to protect underrepresented racial minorities in college admissions, LGBTQ citizens in the public space, and as many as 43 million Americans in need of debt relief of their student loans. Now that the SCOTUS has effectively ended race-based affirmative action in college admissions, a new and uncertain landscape for the future of higher education begins. These are my reflections on the SCOTUS killing race-based affirmative action in college admissions.

The Decision

This case grew out of a lawsuit by an anti-affirmative action group named, Students For Fair Admissions, headed by Edward Blum, who sued Harvard and the University of North Carolina and claimed, among other things, that the schools' admission policies that considered race as a factor, discriminated against Asian American students who had SAT and grade scores higher than any other racial group, including whites. At Harvard, although only 7.2% of the US population, Asian Americans made up 29% of the incoming class. However, Blum's group claimed that the percentage should have been higher. (A quick acknowledgement on the lengths some will go to kill programs like affirmative action, like using other racial minorities as plaintiffs).

The schools considered a number of factors in their admission decisions, outside of the typical academic standards (SAT/GPA), like race, legacy (a student whose parent attended the institution), where a student came from geographically, special achievements in academics or athletics, etc. However, the factor of race is one of the few that is held to a strict scrutiny standard, with regard to the Equal Protection Clause, and must only include narrowly tailored remedies to achieve a compelling government interest, typically based on past discrimination involving or allowed by governmental institutions.

The majority of the SCOTUS, which has justices like Clarance Thomas, who although benefited from affirmative action policies himself, has made a legal career out of opposing it, decided with the plaintiffs in this case and effectively ended the consideration of race as a factor with regard to college admissions. As such, colleges and universities will have to take a colorblind approach when considering college admissions.

The Court did note that the decision doesn't prevent colleges from considering how race affected an applicant's life. It also specifically allowed military academies to continue to use affirmative action programs because of "'the potentially distinct interests' they may present." For the most part though, colleges and universities are barred from using race as a factor in their admission decisions.

The Error of the Colorblindness Approach

Some might think that there is nothing wrong with the colorblind approach and that should have been the one that colleges and universities should have been using in admissions, to begin with. While that sounds nice, it is not the reality that we live in, and in practice ignoring race in a society that has used explicit race-based exclusions for hundreds of years is problematic. As some have already written, some may think that claiming to be colorblind shows that they aren't racist but doing so usually achieves the opposite effect.

Similar to using the obtuse response "all lives matter," which on its face sounds fine, but is only used in response to people who are specifically trying to highlight that black lives matter, seeking a colorblind approach after countless constitutional amendments, court decisions, laws, and other government policies that were color-conscious exclusions of people of color from the colonial period until just a few decades ago is naive at best and at worst deliberately obstructionist.

The late Justice Louis Brandies, was quoted as writing in the 1913 Harpers Weekly that when it comes to social diseases (i.e. racism), "Sunlight is said to be the best of disinfectants." The colorblind approach proceeds with the completely opposite approach, by staying deliberately in the dark on the issue of race. As Justice Jackson pointed out in her dissent on this case, proceeding with "the hope that preventing consideration of race will end racism...the majority proceeds in vain...it will not just go away. It will take longer for racism to leave us."

The Future Without Affirmative Action

Now that the SCOTUS has spoken, where do we go from here? If colleges and universities have any desire to keep the benefits of having a diverse racial student body, they will have to become more creative to continue to do so.

In places where race-based affirmative action is not allowed, race neutral alternatives have come to play a large role in recruiting underrepresented minorities. The most common race neutral policies are the top percentage method, which look at the top percentage of the high schools in a state to select the incoming classes, and the holistic review method, which use a variety of factors like extracurricular, personal statements, essays, recommendations, personal potential, etc. However, studies have shown that while affirmative action may increase the number of underrepresented minorities as much as 20%, top percentage and holistic review methods only increases these underrepresented minority groups by 4% and 7% respectively.

States like California, which banned race conscious affirmative action at public schools through a proposition passed in 1996, have already shown how we as a nation may fair. The top schools saw a drop in their percentage of Black and Latino students while gaining larger white and Asian populations. This caused a ripple effect, pushing black and brown students into lower-tier colleges and, subsequently, to earn lower wages once they enter the labor market.

On a More Personal Note

I have been a vocal advocate of affirmative action for decades now and it was brought to the forefront of my attention in 2003 when I was an undergraduate student. During my last year at the Univesity of Houston, the Grutter v. Bollinger case was decided by the SCOTUS. In the Grutter case, the SCOTUS decided in a 5-4 decision that the Equal Protection Clause does not prohibit the Law School's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.

While the SCOTUS was hearing the Grutter case, I attended rallies in the Houston area, spoke to Houston Chronicle about my sentiments on the subject of affirmative action, and even flew to DC to attend a rally that took place as the case was being heard. This experience left a lasting impression on me and made me pay close attention to all decisions involving affirmative action over the years.

In the 20 years since the Grutter case was decided, not much has changed with regard to race on a structural level in our society. Yes, we've had a black president and currently have a black vice president, but these are merely symbolic achievements and don't affect the day-to-day life of most of the black community. As a result, my sentiments in my 40s are virtually the same on this issue as they were in my 20s when I flew to DC to support affirmative action during the Grutter case.

When the SCOTUS decision was announced this past week, I did get a chance to speak to the local news about my disappointment in the decision. Interestingly enough, the reporter found my quote from the Houston Chronicle above from 20 years ago and saw that I'm now a trustee of a school board, and thought I would have an interesting perspective on the subject matter.

Conclusion

In conclusion, the decision to end race based affirmative action by the SCOTUS is disappointing, but not surprising with the current makeup of the Court. Although most studies show the effectiveness of affirmative action programs, the Court now requires schools to proceed with colorblind programs which are both ineffective and deliberately obtuse in light of of the history of our society.