What happens if the Supreme Court guts affirmative action?

The Supreme Court on Monday heard arguments on whether colleges and universities can continue to consider race when they decide what applicants to admit. Edward Blum, president of Students for Fair Admissions (SFFA), led the challenges, saying Harvard's admissions policy discriminates against Asian Americans, and UNC's gives Black and Hispanic applicants unfair advantages. Chief Justice John Roberts, long skeptical about affirmative action, and other members of the newly strengthened 6-3 conservative majority appeared open to ending the policies, questioning whether letting colleges consider race is legal and constitutional.

Solicitor General Elizabeth Prelogar argued that overturning court precedents allowing schools to view race as one factor in admissions decisions would have "profound consequences" on "the nation that we are and the nation that we aspire to be," and make it harder to educate diverse new national leaders. Liberal justices defended affirmative-action policies, noting the benefits of diversity on college campuses and the importance of countering historic discrimination. The court is expected to rule next June. What will happen if the Supreme Court strikes down affirmative action in college admissions?

Ending affirmative action in college admissions would be disastrous

The Supreme Court's landmark 2003 Grutter v. Bollinger decision established that "the University of Michigan's law-school-admission policy was constitutional because it was narrowly tailored" to help the school attain a diverse student body, say Columbia University President Lee Bollinger and University of Chicago law professor Geoffrey Stone in The Atlantic. The court found that affirmative action was constitutional under the Fourteenth Amendment's equal-protection clause. The efforts to "create equal opportunity and remediate past injustice through affirmative action" have worked, driving progress for Black Americans who now hold senior positions in "courts, universities, and corporations." But let's admit "the irrefutable truth that in contemporary America, Black students' educational opportunities vis-à-vis other groups remain separate and unequal."

Striking down affirmative action in college admissions now will leave the job of establishing a fair system undone. Black students still are less likely than their white counterparts to have access to college-preparatory math and science classes. Black males are twice as likely as white males to quit school. "Consequently, getting into college, competing once there, and graduating four years later is a harder slog for Black students." If the court guts affirmative action and stops schools from valuing things like "leadership qualities, personal talents, race and ethnicity, and family circumstances" to build diverse student bodies, "Black students won't just remain at the back of the line in American life; they will be pushed even further back."

The damage will extend far beyond college campuses

A ruling against considering race in college admissions won't just mean "major changes for higher education, but for private corporations as well," says Noah Feldman at Bloomberg. "Elite employers recruit from elite universities. If those universities become less racially diverse, then the companies that recruit heavily from them — particularly those in tech, finance, law, accounting, and consulting — may as well." And companies pursuing diversity will no longer be chasing an objective "blessed by the courts. Rather, racial diversity will be an objective the Supreme Court has rejected."

This could be a problem for companies, many of which have come to believe that "more diverse companies achieve better financial results." If the Supreme Court throws out affirmative action in higher education, "an employer that seeks diversity along the lines of any category protected by Title VII workplace anti-discrimination law — which includes race, sex, religion, and national origin — will be running the risk of being held liable for unlawful discrimination."

Taking a step toward a colorblind society would help everyone

If the high court rules that race-based college admissions "violate the Constitution's guarantee of equal protection of the laws and the 1964 Civil Rights Act's prohibition of racial discrimination by recipients of federal funding," says George Will in The Washington Post, "the court can bolster the wholesome belief held by a large, diverse American majority: that the nation's laws should be colorblind." This would be a balm to "a nation saturated with the racial obsessions that identity politics encourage, especially on campuses."

As Chief Justice John Roberts put it in a 2006 congressional redistricting case, what this nation needs is to move beyond the "sordid business" of "divvying us up by race." But don't expect a ruling against affirmative action to stop universities from trying to tip the scales, like the University of Michigan's law school did by considering race as part of a "'holistic' evaluation of applicants." "If SFFA wins, universities will accelerate their abandonment of standardized tests (e.g., the SAT). This will help institutions hide discriminatory practices in an opaque 'holistic' process."

This will affect admissions at elite schools the most

There is no exhaustive list of how much every college and university uses affirmative action in their admissions programs, says Donald E. Heller in Politico. But the practice is most common at the nation's most selective public and private universities. "Universities will likely attempt to find race-neutral ways to maintain their enrollments of historically underrepresented students. But there is only so much that can be done."

Under the 2003 Grutter v. Bollinger decision, universities are supposed to "use race-conscious admissions to promote student body diversity" only if "race-neutral alternatives don't work," says Renu Mukherjee in The New York Times. Ignoring this step puts a university on the wrong side of the Constitution. Harvard and UNC could try to meet their goals with race-neutral options, such as eliminating preferences for legacies and the children of donors, or increasing preferences for low-income applicants, but they "have never seriously tried to meet this burden."

Upending "decades of precedent on affirmative action" would have a big impact on college admissions, say Amelia Thomson-DeVeaux and Zoha Qamar at FiveThirtyEight, but it won't trigger the same public outrage that erupted when the Supreme Court's conservative supermajority overturned Roe v. Wade's abortion protections. An early October Washington Post/Schar School poll found that nearly two-thirds of Americans support both promoting diversity on campus and banning colleges and universities from considering race and ethnicity in admissions decisions. "That's because affirmative action is unpopular, even though Americans do want there to be diversity in higher education."

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