To Imperil Affirmative Action Is to Imperil the Future of Millions
In writing the majority ruling on the 2003 Supreme Court case Grutter v. Bollinger, Justice Sandra Day O’Connor dreamed that within 25 years this country might no longer need to consider race as a factor in admission to higher education. Fifteen years later, with the Trump Administration’s plans to change Obama-era guidelines on the use of race in college admissions and the high-profile affirmative action lawsuit at Harvard, we must again examine the role of race in determining who gets into college, and, ultimately, graduate and professional school—and who gets access to economic and social opportunity.
Sadly, our society is no less divided along racial lines than it was when the Grutter case was decided. Our neighborhoods and our schools remain highly segregated, for the most part, and serious inequality of educational attainment continues. The result is an educational pipeline that is unequal from the primary grades through college graduation.
According to statistics compiled by the College Board, students of color increasingly lag behind white students in attending selective colleges, attend two-year colleges in disproportionate numbers, and are less likely to attend or graduate from college. Over 50 years after Brown v. Board of Education, we still live in a society where educational opportunity is divided along racial lines.
For more than 40 years, the Supreme Court has been grappling with the constitutionality of using race in admissions. Each time, the Court has recognized the need to consider race in admissions, even as the opinions called for narrower tailoring and for seeking less restrictive means.
After avoiding a decision on the use of race in college admissions in DeFunis v. Odegaard (1974), the Supreme Court outlawed the use of numerical racial quotas in the University of California Board of Regents v. Bakke in 1978. In Bakke, the use of racial quotas was ruled unconstitutional, but the use of race was permitted, as long as the appropriate scrutiny was applied and there were no less onerous means to accomplish educational equality. The Supreme Court tightened the parameters on the use of race in college and professional school admissions again in Grutter v. Bollinger (2003), Gratz v. Bollinger (2003), and Fisher v. Texas (2016). While the Supreme Court’s scrutiny became stricter and the proof of the necessity of using race became more restrictive in each case, the rulings did not eliminate the consideration of race in admissions.
Anyone who has been in higher education admissions over the last 40 years knows why color-blind admissions simply will not work in a color-conscious society burdened by educational disadvantage due to a number of factors, of which race is the most prominent. It is virtually impossible to eliminate the consideration of race in admissions in a society that has woven race into the fabric of our educational opportunities.
Probably the most difficult argument to understand is the notion that consideration of race in admissions unfairly favors minority students. This is not borne out by the statistics. According to data compiled by LSAC, even with the majority of schools considering race in admissions, the law school acceptance rate for white applicants over the last four years is 84 percent, while for African Americans it is 55 percent.
In any given year, I counsel hundreds of students who, despite their lack of educational opportunities, want to advance their careers through more education. Many of them have faced every disadvantage, including inadequate schools, lower socioeconomic status, violent neighborhoods, and other daunting obstacles. Yet these students have, compared to their peers, excelled in school and are committed to gaining more knowledge and to improving society. Because of their backgrounds, I find these students to be more mission-driven and determined to succeed. If race caused or exacerbated this inequality, why should a fair admission process not include race among other factors in evaluating these candidates?
The Supreme Court is right to restrict the use of race to those situations where there appear to be no less onerous ways to achieve equality. However, nothing in the current educational environment indicates that now is the time to eliminate race from consideration in the admission process. The dream of a color-blind society remains distant. The coming months and years will be critical, as the Courts weigh new cases that could have serious consequences for the consideration of race in higher education admissions. To achieve the goal of a legal system that mirrors our diverse society, higher education must raise its collective voice and do everything possible to maintain the use of race as part of a balanced admission process.