Affirmative action advocates given hope despite looming ban

The US’ selective colleges and universities have been offered a pathway that could enable them to continue to consider an applicant’s race in admissions decisions, despite the widely held view that the US Supreme Court is preparing to ban affirmative action.

Such optimism has arisen from a recognition that the plaintiffs in the lawsuits against Harvard University and the University of North Carolina appeared to have conceded that admissions officers could rely on student essays as a proxy for racial identification.

This would allow students to write essays describing their life experiences – including the effects of racial discrimination – and admissions officers could consider that kind of information as one factor among others in whether students win admission, said one expert, former Clinton administration education official Art Coleman.

Although it would represent a “very fine line” in the definition of what the court would allow, said Mr Coleman, the managing partner and co-founder of the consulting firm EducationCounsel, “there is a reasonable prospect that this court would accept that concession”.

A ruling on the two cases is expected this summer, amid widespread predictions that the justices – now holding a 6-3 conservative majority – will reverse decades of court precedent that have long allowed US colleges and universities to consider race among a series of factors they weigh in determining which students they will admit.

The pending court ruling has prompted concern across US higher education that black students will face worsening prospects of entry into the nation’s best-regarded institutions. That fear is based on experiences such as that of California, where voters in 1996 ended affirmative action in their own public systems. The result has been that black admission rates to the renowned University of California system dropped from six percentage points below the state’s overall average to 16 percentage points lower by 2019.

That anxiety was a theme at the recent annual conference of the American Council on Education – the main US higher education association – where university officials spoke with dread about the court’s decision in the Harvard and UNC cases. “This has the potential of being very demoralising,” said one participant, Shannon Gundy, the director of undergraduate admissions at the University of Maryland, College Park.

The cases against Harvard and UNC were brought by a conservative activist group that has fought for years to end affirmative action in college admissions, and now appears on the verge of victory due to the rightward transformation of the court’s membership during the Trump administration.

Mr Coleman, a deputy assistant US secretary of education for civil rights under the Clinton administration, who also addressed the ACE conference, said that he would not make any firm predictions about how the Supreme Court would rule. 

But several justices on both sides of the court’s partisan divide asked numerous questions during the October hearings that made it clear they understood the significance of what allowing essays to be considered would mean, and recognised the potential obstacles to forbidding institutional admissions officers from considering student life experiences, Mr Coleman said.

“While we are expecting a bad outcome” in terms of affirmative action, he said, “it may not be the ultimate in bad outcomes that so many people fear.”

Another expert, Anthony Jack, an assistant professor of education at Harvard University, said that even conservatives might not want the court to forbid colleges and universities from using essays to learn about the personal struggles of their applicants. “There’s too many white people who are first-generation; there are too many poor white people,” he said.

Yet there remain important unknowns even if the Supreme Court does allow essay-based deciphering of racial identities, Mr Coleman warned. One is that elite colleges and universities would still need to ensure that the low-income students they admitted could actually afford to accept, he said. The answer could turn on what the Supreme Court says about the use of racial preferences in student aid and the degree to which institutions try to help such students, he added.

José Padilla, the president of Valparaiso University, anticipated that challenge, recalling for his colleagues at ACE the example of his service on the board of the University of Michigan’s alumni association, which took the initiative of raising money to create race-conscious programmes of financial aid and student support. “There’s all kinds of things you can do” to get around restrictions on the use of public funding, he said.

paul.basken@timeshighereducation.com