Up from Here: Hope for the Future of Affirmative Action

A Call for Optimism:   

In Booker T. Washington’s crucial and inspiring autobiography, he explains his rise from life as a slave to becoming one of the most important black educators and thinkers of the 20th century. To reflect his forward-thinking approach to solving African Americans’ struggle for equality in the United States, Washington optimistically titled his book, Up from Slavery.   

  

University admissions officers would do well to keep in mind Washington’s outlook and optimism in the aftermath of the Supreme Court’s recent and disappointing decision in SFFA v. Harvard. I advocate that it is precisely with Washington’s outlook and example, fighting against what may appear as insurmountable odds, that university admissions offices and African Americans alike should endeavor to emulate.  

  

 As it applies to the central message of this blog, my advice to admissions officers is to look to past cases that have already been decided on the topic of race-based admissions and to curtail their efforts accordingly. As will be articulated, the Supreme Court seemed to put the definitive nail in the coffin of race-based, affirmative action policies, but this oversimplifies the matter.   

  

Affirmative Action through the Years    

As far as the case history goes, the Supreme Court, up until its decision in the aforementioned case, has scantly spoken on the subject of race-based affirmative action. In Regents of the University of California v. Bakke, 438 U.S. 265 (1978), the Court recognized for the first time that a “diverse student body” was a compelling state interest, sufficient to “justify consideration of race in admissions.” The diversity rationale, rooted in Brown v. Board of Education, 347 U.S. 483 (1954), emphasized the critical importance of diversity and the inadequacy of “separate but equal” schools.   

  

It should be noted however, that this was not the only rationale offered in defense of considering race in admissions programs. A chief rationale in the past was that affirmative action was crucial to rectify past racial injustices that rendered African Americans and similarly situated racial minorities disproportionately absent from universities.   

  

As far as the Court’s approach in deciding race-based admissions policies, the Supreme Court seemed to gather its footing in the next giant case on the subject: Grutter v. Bollinger, 539 U.S. 306 (2003). Endorsing the view of Justice Powell in Bakke, that “student body diversity is a compelling state interest”, the Supreme Court sought to guard against two risks, primarily.   

  

First, the court moved to prevent admissions offices from engaging in “illegitimate…stereotyp[ing]”, in assuming that “minority students always…express some characteristic minority viewpoint on any issue.” Second, the Court sought to guard against the risk of discriminating against racial groups not benefiting from the race-based admissions decision. Finally, the Court articulated its view of the temporary nature of race-based admission protocols, namely that in 25 years its use would no longer be necessary.   

  

Next, the University of Texas at Austin withstood the U.S. Supreme Court’s application of strict scrutiny in Fisher v. University of Tex. at Austin, 579 U.S. 365 (2016). Though the Court conceded that “acceptance of race-based state action is rare” it nevertheless articulated that such a program may be instituted for “the educational benefits that flow from student body diversity.” The Supreme Court clarified that “asserting an interest in the educational benefits of diversity writ large is insufficient” and that the university’s goals must not be “elusory or amorphous.” In other words, the goals sought after by using race-based admissions must be concrete and precise – plainly articulated.   

  

Texas further offered that its consideration of race in admissions was not central to its admissions program. The university showed that it only considered one’s race as part of a “holistic review of an application” wherein a prospective student received a numerical score from one to six. This score is calculated according to the “Personal Achievement Index” (PAI). The PAI is comprised of essays, letters of recommendations, leadership experience, and “special circumstances.” It was only in this sub-factor of “special circumstances”, made up of other sub-sub-factors such as socioeconomic status, family obligations and languages spoken at home, that an applicant’s race was taken into consideration.   

  

Lastly, the Fisher decision is critically relevant to the discussion of race-based admissions programs due to its re-articulation of the strict scrutiny standard. Such programs must survive a “daunting two-step examination” of strict scrutiny which requires a compelling governmental interest that is narrowly tailored or “necessary” to achieve that interest.   

  

Changing the Landscape or SFFA v. Harvard Rationale and Ruling   

The most recent Supreme Court decision in SFFA v. Harvard shocked the nation, and understandably so. Since the pandemic, our country has appeared to be in its most receptive state, primed to embrace race and diversity. However, in the instant case, the Court reversed the decisions of lower courts that had ruled in favor of the race-based admissions programs of Harvard and the University of North Carolina. Still, a careful study of the case rewards nuggets of hope that may not be readily perceivable to the rashly decided mind.   
  

Those who brought the case were Asian-Americans, belonging to an organization called Students for Fair Admissions, claiming racial discrimination as the basis for being rejected from the schools. The Supreme Court applied the Grutter test, just as it had in Fisher v. University of Texas. It is important to recall that the crucial element that made Texas’ admissions program successful was that it contained well-articulated and clearly defined race-based admissions in dealing with the diversity interest.  

  

Shifting back to SFFA, Harvard responded with the interests it felt were compelling in engaging in race-based admissions. The interests the Court heard, but rejected were those of training future leaders, acquiring new knowledge based on diverse outlooks, promoting a robust marketplace of ideas, and preparing engaged and producing citizens. In its application of strict scrutiny, the Supreme Court conveyed that though the goals were commendable and well-intentioned, they ultimately would not pass strict scrutiny because they were not compelling enough.   

  

As the Court would assert, the rationale used by Harvard and UNC was simply too illusory. In applying this standard, the Court had issues with the process of quantifying the interests. In other words, there was no readily discernible way to measure interests such as preparing engaged citizens, nor was there a definition of how much a citizen would have to “produce” before being considered a “producing citizen”.  

  

In addition to the problem of whether the interests were compelling and measurable, the majority took issue with how they were sought. Namely, that they found the goals not sufficiently narrowly tailored. To cite a few examples, the Court found that there was “[n]o concern whether South Asian or East Asian students are adequately represented as ‘Asian.’” Additionally, they targeted the fact that there was no category for Middles Eastern students and only an arbitrary one for Hispanics.   

  

Next, in applying the three-factor test found in Grutter – negative effects on others, stereotyping, and a lack of an endpoint, – the Court found the university’s admissions programs lacking. First, evidence was submitted that Harvard’s race-based admissions program had resulted in less Asian-American student admittances, thus violating the Equal Protection Clause.   

  

Furthermore, in step with the contentions of the Plaintiffs, the Court found the universities’ interests rooted in racial stereotyping. This is because the universities’ interests, seeking to benefit from diversity of races, overly grouped students of the same race together, thus acting as if those of “a particular race…think alike,” as the Court put it. And finally, notwithstanding the fact that the 25 year limit imposed by Grutter had not yet run out at the time of this case, according to the Court, “Harvard’s view about when [race-based admissions will end] doesn’t have a date on it” and thus fails for a lack of a feasible endpoint for the race-based program.   

  

  

Moving Forward   

After the decision in SFFA, many still assume that raced-based affirmative action is dead. Moreover, articles such as Affirmative Action is Over in the U.S., but only for Black People only serve to muddy the water. Affirmative action is not dead. SFFA merely administered the same standard of strict scrutiny it applied in Fisher v. University of Texas at Austin, and Harvard and the University of North Carolina at Chapel Hill were found wanting. Furthermore, the Supreme Court did not overrule Grutter nor Bakke, but rather built upon them, further clarifying the strict scrutiny standard.  

  

The time is now for the admissions teams at Harvard and UNC to go back to the drawing board and articulate, precisely, a clear rationale and goal for considering race in the admissions programs. It would be expedient for the universities to take Texas’ example by only considering race as a sub-sub-factor of variables to be determined in connection with enriching the academic environment through diversity.   

  

Despite the result of SFFA, the optimistic result of the ruling is that the Court has a systematic test it is following. As minorities or admissions teams alike, with crucial interests in the state of race-based admission programs, we need not fret. The admissions programs must not be dissuaded by what appears to be giving up ground in the fight for racial equality in the United States. What has worked for the University of Texas, achieving a successful review by the Supreme Court for a similar compelling interest (although altogether more articulate and specific), may be replicated by other universities. Of course, this assumes that at the time Harvard and UNC would be instituting a new admissions program, there must be a finding that racial disparities exist, and such a race-conscious program is actually “necessary” to rectify them.  

  

In the quest for racial equality and justice ascendance, proper attention should be given to guard against any negative effects unintentionally inflicted on other minorities such as Asian-Americans. Furthermore, the interests of the college or university must be articulated sufficiently and with clear parameters. With those elements in tow, and the knowledge that the door to race-based admissions is still open, inspiration, not despair, is born. One need only knock! Back to the drawing board to devise a method that accomplishes the worthwhile and honorable objectives of securing racial equality while not stepping on other races’ chances at the same dream.   

  

To emulate an admirable man of the past, it is only Up from Here.   

Isaiah Palmer, Staff Member