On June 29, 2023, the U.S. Supreme Court ruled in favor of the challenge against the constitutionality of affirmative action, eliminating a practice ingrained in college admissions for over a half a century.

The 6-3 decision in favor of Students for Fair Admissions, INC. (SFFA) centered on the claim that affirmative action, a race-based admissions policy at private universities, violated the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment.

At the heart of the ruling were two cases, held simultaneously against Harvard College and the University of North Carolina (UNC), initiated by SFFA.

The Court made several observations about the flaws within the admissions process of both Harvard and UNC concerning their use of race in applicant selection.

The admissions programs at both institutions proved to be a disadvantage for certain racial groups, which violated the Equal Protection Clause’s mandate not to use race as an adverse factor.

Chief Justice John Roberts wrote on behalf of the majority that a student “must be treated based on his or her experiences as an individual — not on the basis of race.”

To Jon Reider, former admissions officer at Stanford University, the ruling came as no surprise.

“We had meetings with Stanford lawyers even back in the ‘90s, discussing what we would do when affirmative action was killed,” Reider said. “It took 25 years to kill it.”

According to Reider, the consensus is unanimous that the number of minority students enrolled in private higher education institutions will decrease to some degree.

But to him, one thing is clear:

“Colleges are prepared, and they’re adapting. They’re not giving up on diversity.”

History of Affirmative Action:

In September 1966, President Lyndon B. Johnson issued the Executive Order of Fair Employment, which required federal contractors to ensure equality of employment opportunity regardless of race, religion, sex or national origin. This was the first of many affirmative action policies to follow and its results proved to be positive.

Prior to the executive order, only 4.9 percent of college students were Black. But in wake of the affirmative action measures, the percentage of Black college students began to have a steady climb in the following years, rising to 11.3 percent in 1990.

Although statistics showed improved diversity on college campuses, many applicants disagreed with the changes in policies and went to court to challenge affirmative action.

One notable case was the 1978 Regents of the University of California v. Bakke case, where a white man named Allan Bakke filed a lawsuit after UC Davis rejected his application to the university’s medical school. 

Bakke’s admissions scores were well above those of the average admittee, and there were open slots available when he applied. Bakke argued that the clear-cut racial quota system, which guaranteed 16 of 100 spots for students of color, was unconstitutional and a violation of the Civil Rights Act of 1964.

The Supreme Court ruled this type of racial quota system unconstitutional but affirmed that colleges could still consider race when admitting students.

Since then, several propositions have emerged to challenge affirmative action policies in California’s public colleges. 

In 1996, California voters approved Proposition 209, effectively banning affirmative action in public colleges and universities. 

The ban first took effect with the class of 1998, and consequently, diversity rates within UC campuses plummeted in both application and enrollment. That year, the total enrollment of Black and Latinx students at UCLA and UC Berkeley experienced a 40% decline.

Sacramento Country Day’s college adviser, Alicia Perla, was in the process of applying to law school when the ban was enacted. 

Perla was accepted to various law schools across the country, including UC Berkeley. However, she decided not to enroll, partly because she was uncertain about what the campus would look like the following year. 

“As a person of color, I don’t know that I want to fly across the country and go to law school where diversity is not going to be valued and where I’m going to feel like I’m alone,” Perla said. 

Consistent with Perla’s concern, UC Berkeley’s incoming freshman class diversity decreased significantly from 1997 to 1998.

In Berkeley’s report of the new freshmen enrolled by ethnicity in 1997, the subtotal of Native American, African American, Chicanx and Latinx students made up 23.1 percent of the student body. However, following the implementation of the affirmative action ban at UC Berkeley, this subtotal declined significantly to 10.4 percent.

Promoting Campus Diversity:

After the 1996 ruling, UC institutions looked to policies they could implement to maintain diversity within student bodies. Some of those initiatives included a holistic approach, comprehensive review and guaranteed admission.

To start the shift from affirmative action, UC campuses began to rely on a holistic approach, where they considered factors such as personal essays, academic metrics and attributes of an applicant to determine if they were a fit for the school.

Another initiative was comprehensive review, which assessed students’ academic accomplishments in relation to the opportunities accessible to them. This included special circumstances a student may have faced, such as family responsibility and the location of their high school.

Admission was also guaranteed to, based on UC-calculated GPA, the top 9% of students graduating from the majority California high schools.

Even before the ruling, many colleges outside of California had implemented initiatives to increase diversity. 

In 2005, Yale created a student ambassador program, which has since inspired numerous other colleges to do the same. 

According to Reider, the program selects alumni who have graduated from high schools with significant minority populations. These alumni are then tasked with returning to their former schools to actively recruit new students, broadening their outreach to underrepresented communities.

The long-term implications of the ruling and these initiatives still remain unclear. However, colleges can look to the effects of the 1996 ban to evaluate what steps they can take moving forward, learning from history.

“We won’t know for a year how successful they were,” Reider said. Experimentation will be the norm as colleges confer with each other on the effectiveness of different practices.”

Harvard Admissions:

In light of the 2023 ruling, some parts of universities’ admissions processes are being overhauled.

For example, prior to the ruling, Harvard’s admissions process operated as follows:

Each application underwent an intial screening by a first reader who assigned a numerical score to each of the given six categories, including academic, extracurricular, athletic, school support, personal attributes and an overall assessment.

The overall rating was a combined rating of the five other categories and consideration of the applicant’s race. 

Regional admission subcommittees then reviewed applicant ratings and considered race when making recommendations.

Next, Harvard’s full 40-member admissions committee discussed the pool of applicants by race and looked at the rates of minority admissions from the prior year. Applicants who received the majority of votes were tentatively accepted.

In the final “lop” phase, the list of tentatively admitted applicants were narrowed down to form the final class. Applicants Harvard considered rejecting were placed on the “lop list,” which contained information about legacy status, recruited athlete status, financial aid eligibility and race — which could influence the final decision.

Due to the recent ruling, Harvard no longer explicitly factors race into admissions. Instead, they now require applicants to answer a series of questions about life experiences, extracurricular activities or family responsibilities.

One question reads: “Harvard has long recognized the importance of enrolling a diverse student body. How will the life experiences that shape who you are today enable you to contribute to Harvard?”

In 2022, these were optional, since race could still be directly considered. The rest of Harvard’s application remains largely unchanged.

Implications For The Future:

The core challenge for colleges is finding ways to honor both law and the spirit of diversity.

“It’s very ambiguous and the colleges are going to be very careful so they don’t get sued again,” Reider said.
He cited Yale, who changed their policies quickly in response to a pending lawsuit.

Yale University made quick changes in response to a pending SFFA lawsuit, attempting to comply and accomplish this balance. Updates included new training materials, steps to avoid applicant race information sharing during review and other adjustments to “support a diverse and inclusive community.”

This included new application questions, more admissions officers for outreach, and expanding the Yale Ambassador program’s reach.

While the policy was flawed, Reider expressed regret that affirmative action is now banned, claiming it was still more beneficial than not having it at all.

“Did affirmative action mean it was easier for minority students to get in? Yes. Were they admitting unqualified students? No. They were admitting students they believed would be successful,” he said.

Since his time at Stanford, Reider has maintained the same guidance for students. He avoids telling them to get excited or worried, stressing that their chances haven’t dramatically changed up or down.

What’s needed is a focus on the bigger picture, he said.

As Perla emphasizes, regardless of student race, Country Day prepares students to succeed in college.

“I think we are lucky that this is a strong academic school. Regardless of the race of our students, they are prepared to go to college,” Perla said.

With continued focus, students will thrive in pursuing higher education, even in the face of admissions policy changes.