Admissions After Affirmative Action: What’s Next in Higher Ed

In a landmark decision on June 29, 2023, the US Supreme Court ended decades of precedent by putting an end to affirmative action in university and college admissions. The public, prospective students, and especially higher education institutions are all wondering about the future of admissions and campus diversity.

Why was affirmative action an issue?

For years, universities have used a form of affirmative action to diversify the student body. The practice of affirmative action was initially intended to admit more students of color who had historically been excluded from many colleges and universities across the United States.  Thus, race was generally one factor in what was deemed a holistic approach that included reviewing applications, grades, standardized test scores, and extracurricular activities.

Affirmative action, or its continuation, has received mixed reviews in more recent years as we have distanced ourselves from the civil rights movement that started the process. The issue of any form of affirmative action or consideration of race as a factor in the admission process has been before the Supreme Court many times. As recently as 2016, the court still allowed race to be a category considered in the admissions process. Proponents view affirmative action and the consideration of race as a way to achieve educational equity, whereas its opponents view it as a form of racial discrimination.

One of these opponents, the nonprofit activist group Students for Fair Admissions, brought cases against Harvard and the University of North Carolina (UNC) for their race-based admissions policies. The group argued that the universities discriminated against white and Asian-American applicants whose average grades and SAT scores were higher than non-white and non-Asian applicants. The universities responded that race is rarely determinative and that ending affirmative action would lead to a decrease in diversity.

What was the Supreme Court’s ruling?

Voting 6-3 along ideological lines, the Supreme Court ruled that race-based admissions policies at Harvard and UNC are unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. Generally, courts defer to universities to make academic decisions on their own. However, the majority cautioned that this deference has limits: namely, the Constitution.

Writing for the majority, Chief Justice John Roberts advocated for a “colorblind” approach to university admissions. He wrote that “[e]liminating racial discrimination means eliminating all of it,” and that categorizing applicants on the basis of race undermines universities’ diversity goals.

No matter how “well intentioned and implemented in good faith” the policies are, the majority found they are unconstitutional for three reasons:

1. They do not have a clear, measurable purpose
2. They use race as a negative factor and require stereotyping
3. They do not have a meaningful end point

In a rare turn of events, two Justices read their respective concurring and dissenting opinions from the bench. Justice Clarence Thomas’ concurrence stated the Constitution is colorblind and therefore the Supreme Court’s precedent of upholding affirmative action was “for all intents and purposes, overruled.”

Justice Sonia Sotomayor’s dissent criticized the Court for reversing “decades of precedent and momentous progress” and instead relying on a “colorblind” approach to race despite the pervasiveness of racial inequities. Justice Brown Jackson noted in her dissent that “[t]he best that can be said of the majority’s perspective is that it proceeds (ostrich-like) from the hope that preventing consideration of race will end racism. But if that is its motivation, the majority proceeds in vain.”

What does the future hold for university admissions?

The Supreme Court’s decision will prevent higher education institutions from considering race as a factor in their admissions processes. Institutions can still consider information learned through an essay or interview about how race has affected the applicant’s life “through discrimination, inspiration, or otherwise.” However, institutions cannot use this as a work-around to use race as a factor and must be careful to have non-race-based reasons for its admissions decisions. Applicants should be assessed holistically based on their life experiences.

This ruling applies to all institutions of higher education in the United States , however, the decision noted that military institutions are exempted from this ruling and therefore can continue to take race into account. Many Historically Black Colleges and Universities (HBCU) are disheartened by the ruling as they see it as set-back for all people of color in America. The HBCUs are preparing for an increase in applications as many students of color may now be more inclined to apply to an HBCU than to the historically white institutions that had been favored by many.

When a long-standing precedent is overturned, it is difficult to predict the effects. Already, civil rights groups have filed a lawsuit challenging legacy admissions at Harvard. The decision may also have a domino effect on other admissions-based systems, including primary and secondary schools, and scholarship programs.

Institutions may need to adjust their admissions process in the coming months before the next application cycle and may consider clarifying what factors are considered for students looking to apply. Specifically, if the make-up of your student body is an important factor in your educational process, you may want to think creatively about how to achieve those goals while complying with the new law of the land.  If you would like to review your admissions policies, processes, and communications, please contact a member of the WRVB Higher Education team.

Clearly, we all have work to do. The team at WRVB is ready to assist.

This article was authored with the assistance of Summer Associate Nicole Chaney.  Nicole is pursuing her JD at the Wake Forest School of Law.

Full opinion: Students for Fair Admissions v. Harvard College (PDF)