Thursday, June 29, 2023
In a decision that surprised exactly no one, the Supreme Court announced today its decision in Students for Fair Admission, Inc. v President and Fellows of Harvard College: the affirmative action admission policies and practices that have been followed for decades by most colleges and universities in the United States are unconstitutional. The vote, equally unsurprising, was 6–3. There will be much parsing of the precise language of the decision, but it's clear that the ruling will require sweeping changes in college and university admission programs and practices, to the great detriment of both historically underrepresented groups and higher education generally.
Legal advice will flow. Law firms and professional associations will counsel colleges and universities to implement race-neutral means of identifying, recruiting, and enrolling racially and ethnically diverse classes. They’ll also advise institutions to find new ways of thinking and talking about their recruitment goals, especially as they involve diversity. Easy to say, harder to do. Institutions in the nine states already laboring under affirmative action bans have had a hard time enrolling students from underrepresented groups, especially African Americans. And the habits of mind and speech developed during decades of affirmative action will not be easy to put away.
It’s revealing that the legal advice rendered in anticipation of this outcome has not included much discussion of the other admission preferences that are ubiquitous in both public and private higher education — preferences for the children of alumni/ae (legacies), preferences for major gift prospects, preferences for specialized talents (the oboe player), and preferences for recruited athletes. The admission advantages enjoyed by applicants from these groups are significant. Data on admission rates for legacies, potential donors, and special talents are not publicly available (and in some cases not gathered). But the admission rates for recruited athletes are known with some precision. Studies conducted by the Andrew W. Mellon Foundation over multi-year periods revealed that recruited athletes applying to highly selective and selective public and private colleges and universities enjoyed a significant admission advantage over non-athletes, an advantage every bit as large as that extended to students from underrepresented groups. What is more, these highly recruited athletes tended to underperform in the classroom.
These forms of preferential treatment were discussed during oral arguments before the Supreme Court in the cases brought against both Harvard and the University of North Carolina, but since they are not discriminatory within the meaning of Title VI of the Civil Rights Act or the 14th Amendment, they are no part of the Court’s final ruling. And so they will almost surely continue, as they have in states that recently barred affirmative action, unless institutions ask themselves the obvious question: if it is no longer permissible to extend admission advantages to African American and Hispanic applicants in the interest of diversity and social equity, how can colleges and universities continue in good conscience giving admission advantages to legacies, the children of prospective donors, specialized talents, and recruited athletes? In the context of a national retrenchment on equal opportunity in higher education, and indeed across society, what is the justification for continuing such preferences?
Some advocates for higher education, and for private higher education especially, will argue that preferences for legacies, major gift prospects, and athletes are necessary to ensure the future financial stability of institutions. Legacies and major gift prospects bring donations, they argue, and athletic programs bring revenues while enhancing alumni loyalty (and thus future giving). It’s true that all institutions now depend on loyal and generous alumni and parents. But it’s also true that the children of alumni/ae and major gift prospects already enjoy social and economic privileges, owing in part to the accrued advantages of higher education. Giving privileged young people a leg up in the college admission process at the very moment underprivileged applicants are having the rug pulled out from under them ought to cause substantial unease, at the very least. As for athletes, it’s important to note that except for a small handful of Division I schools, athletic programs do not generate abundant, unclaimed operating revenues for their institutions. Indeed, in most places, athletic programs are pure expense — legitimate, perhaps, but still expense. And there is very little evidence that the supporters of collegiate athletic programs give at higher rates than other alumni/ae. Do athletic programs serve the educational mission? Perhaps. But it’s hard to see how that requires admission advantages for athletes. If athletic programs are part of the curriculum, let’s assess prospective participants in the way other applicants are assessed — on the strength of their academic credentials and the likelihood of success in the classroom.
It’s too late to save affirmative action in higher education, at least for the foreseeable future. But colleges and universities still have time to make decent and equitable decisions about how they manage their admission programs, and about which values those programs embody and serve. College degrees matter more than ever in American life, and offers of admission to our colleges and universities are relatively scarce social goods. Administrators, trustees, and faculty should ensure that these goods are distributed as fairly and equitably as possible. If affirmative action for underrepresented minorities is deemed unconstitutional, affirmative action for legacies, the children of the well-off, and athletes should also be let go.
Adam Liptak, “The Supreme Court Strikes Down Race-Based Decisions at Harvard and U.N.C.,” The New York Times, June 29, 2023
Amy Howe, “Affirmative Action Appears to be in Jeopardy After Marathon Arguments,” SCOTUSblog, October 21, 2022 https://www.scotusblog.com/2022/10/affirmative-action-appears-in-jeopardy-after-marathon-arguments/
Bass, Berry, Sims, “Takeaways and Predictions from Oral Argument in UNC and Harvard Cases at the Supreme Court,” November 3, 2022. https://www.bassberry.com/news/oral-argument-in-unc-and-harvard-cases-supreme-court/
Charles F. Robinson et. al., “Brief for the President and Chancellors of the University of California as Amici Curae Supporting Respondents,” Harvard University https://www.harvard.edu/admissionscase/wp-content/uploads/sites/6/2022/08/Amicus-Brief-University-of-California.pdf
James Shulman and William G. Bowen, The Game of Life, Princeton University Press, 2001
William G. Bowen and Sarah Levin, Reclaiming the Game, Princeton University Press, 2003