This is a useful article on how California public colleges have tried to maintain (or increase) diversity after the 1996 proposition barring considering race in admissions.
Lots of stats for Cal, UCLA, and some of the Cal States. One interesting quote from an AO was that there is no good substitute for considering race–not low income, first gen, etc.–to achieve diversity.
Of course, that is if “diversity” is defined only in racial/ethnic terms (which is generally what people in general first look at, because it is the most visible aspect). Obviously, looking at SES and first-generation-to-college can affect diversity in those dimensions, and there is some overlap with each other and racial/ethnic diversity.
NYT Article on the SCOTUS’s 1st day in court (Harvard/UNC-CH case).
I’m currently listening to the oral arguments in the UNC case. It’s pretty interesting.
I must say, the women justices ask a lot more questions than the men.
So a bit of perspective on the Supreme Court arguments, from a lawyer who has a general familiarity with the structure of the legal arguments:
The UNC case and Harvard case are fundamentally different. While they could both be decided in the same direction, there is a very real possibility of a split in decision.
UNC is effectively a government entity – It is governed by the Constitution, and the 14th Amendment guarantees “equal protection.” More Conservative legal theory has long held that virtually all racial preferences are unconstitutional as violations of equal protection. Justice Roberts memorably has written: “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
But the 14th Amendment does not apply to private entities. In fact, Conservative legal theory has generally upheld the right of private actors to be racists. Protection from private racism comes from the Civil Rights Act of 1964 which prohibits certain private actors from discriminating. But the intent of the Civil Rights Act of 1964 was specifically to protect the rights of black Americans who were subject to Jim Crow laws. The basic fundamentals of the law have not changed in 60 years. Part of Conservative jurisprudence is deferring to legislative intent and respecting precedent. This is where there may be a split in the decisions – You’d be hard pressed to say the intent of the Civil Rights Act of 1964 was to prohibit affirmative action.
Where Conservative Justices may still find a basis to strike down Harvard’s policy would be in “plain meaning” – The plain words of the Civil Rights Act prohibit any race based discrimination, and therefore the intent isn’t relevant. But again, this runs afoul of how the act has been interpreted for 60 years.
The real key to the Harvard case is the claim that the affirmative action discriminates against Asian Americans. Thus, the Court could find that the discrimination against Asian Americans violates the Civil Rights Act, but that still leaves the question of whether it would require completely striking down affirmative action.
The 3 Liberal Justices take the view that the 13th-15th Amendments as well as the Civil Rights Act were intended explicitly to protect and promote the rights of black Americans, given the American history of slavery and racism, and that affirmative action remains an appropriate corrective measure.
I do believe that all 9 Justices are acting in good faith, and the arguments reflect genuine disagreement on both policy and legal interpretation. I don’t believe any of the 9 Justices wish to promote any racism or unfairness, but they have a legitimate disagreement as to what is fairest and most equal.
One of the Conservative Justices, Neil Gorsuch, repeatedly brought attention to the fact that many aspects of the admission evaluation favors white students – Specifically legacy admissions and recruiting for sports and activities that tend to favor wealthier whiter demographics (crew, lacrosse, etc).
It was also pointed out that “holistic reviews” have a history of being used as a way to limit the enrollment of Jews.
Of course, “holistic reviews” are very open to introducing discrimination. Which is why some places have tried to use purely objective measurements – civil service exams for government promotions and hiring, for example.
Yet the problem in higher education is that using purely “objective measures” isn’t really objective, as it bakes in structural racism.
Anyway, the Court certainly isn’t going to strike down “holistic review” though several Judges seems weary of it. We can be confident that “affirmative action” will be struck down or severely limited by these 2 cases.
But what does that mean? Even the attorneys challenging affirmative action made it clear they are not seeking total racial blindness in admissions – They want elimination of the box.
It became clear in oral argument that a college admissions office could still give an advantage to a student who wrote their essay about having to overcome racism. They can award students who show extracurricular activities that promote diversity.
What will be eliminated is the “box” that gets underrepresented minorities from being automatically evaluated in a different manner.
I fully expect this will lead to selective colleges also eliminating legacy admissions. Further, they will continue to try to promote diversity with greater recruitment in minority neighborhoods, looking for extracurriculars and essays that express diversity, etc.
Thank you for the on point analysis. Hearing the Justices, I think affirmative action as currently practiced is toast. I also think that socio economic factors will be more heavily considered as well as geographic, especially for the wealthier schools that do not need to accept students with an eye on how much FA will need to be provided. I guess “Harvard will just have to be Dartmouth” 
, my favorite sound bite out of the entire hearing.
Perhaps, and one justice directly said that could happen. But, I have heard from several URM graduates of highly selective institutions (undergrad/grad/professional) who are adamantly opposed to eliminating legacy admissions, as over the last decade or two, these schools have increased their URM populations.
These highly rejective schools are already recruiting in less privileged schools and/or schools with students of color. Schools are already using CB’s Landscape report. Schools are using outside organizations like Questbridge, Posse, and hundreds of others to pre-screen applicants that meet institutional priorities like increasing Pell grant students, or URMs or first gen, etc…and they can increase the numbers of students they pull from these organizations.
If we take away the box (which does not lead to a separate/different eval process for a URM applicant), the students who would most benefit from writing about race and diversity will be the ones less likely to know they should do that. As always, limited income students, those of color, those without good college counseling, are more likely to be disadvantaged in the process.
The issue will be for highly selective schools that don’t have a Harvard sized enrollment – In other words, most of the ranked 10-50 schools…
They want the diversity but they really don’t want to go too far digging in to low income. Ultimately, these schools need more students who are able to pay most/all of the tuition.
Of course, this begs the question to the extent affirmative action was mostly helping the underrepresented minority applicants who didn’t need the help. The upper middle class URM student with the 3.9/1450 who is already competitive for T20 schools now becomes ultra competitive for the T5 schools.
Absolutely true. But through the programs you mentioned like Questbridge… accomplished URM students will learn the system. (And you could say holistic review already hurts these students who have less impressive internships and volunteerism in their applications – Didn’t have the chance to intern for daddy’s friend who is a Senator!).
Remember, none of this really affects most students/admissions at most universities and colleges. Colleges with 80+% admission rates don’t need to give an edge based on race.
So none of this affects the rich or poor student with a 3.1 GPA and 1100 SATs going to a mid-level in-state state college.
The students that are affected are mostly high achieving students looking at T100 schools. And those high achieving students will generally find a way to understand the system.
Agreed. And as we know, it’s not the highly rejective schools that are the most successful at educating and launching (improving social mobility) of FGLI and/or URM students.
Questbridge is targeted at those from low income families, but probably gets mostly those called the “privileged poor” who know about it early enough to get all of the needed application materials in by the very early deadline.
Note the most successful social mobility schools are those that actually attract poorer students – Top of the list is CUNY which attracts lower income NYC residents.
URM students at Harvard are not overwhelmingly low income URM – They are often middle class (or even wealthy) URM… Because few true low income students are that close to the academic range for Harvard admissions.
Meanwhile, a school like CUNY is truly giving degrees to true low income students, a degree that actually does proportionally significantly increase their earnings power.
… because they are less likely to attend college at all otherwise, unlike most Harvard students who would otherwise attend a slightly less selective private, a state flagship, or some place offering them a big scholarship. The difference between a HS diploma and a CUNY bachelor’s degree is much larger for most than the difference between some-other-college bachelor’s degree and a Harvard bachelor’s degree.
It looks like the Supreme Court will decide this question in a few months. Personally I hope they get rid of affirmative action, clearly it discriminates against one group in favor of another. This brings resentment from that group against the other, it really does exacerbate racial discrimination instead of doing the opposite.
I think there will be a split. UNC does have an interest in serving its state residents, making sure residents from all areas will be able to go to UNC. I think they will get rid of the race ‘box’ but allow consideration of race as a factor as to how it affected the applicant’s life. I do not think it will make one bit of difference as to how many Asians are admitted in the future.
IMO, Harvard will not get the same treatment as it doesn’t have a mandate to serve certain citizens. They will be able to meet their mission without affirmative action.
I do think other schools like Catholic schools, HBCUs, the service academies, women’s colleges will get exceptions and be able to consider race, sex, religion to meet their missions.
I think my perspective is slightly unique. I have a white son who is going through the process now. I have an Asian daughter who will go through the process in a couple of years, after this is all sorted out.
I simply recognize it as a very complicated issue. I do believe diversity is a very worthy goal, I do believe in taking affirmative steps to correct past (and ongoing) racial injustice.
But I’m not sure the current affirmative action system does much except give a boost to already accomplished (and less disadvantaged) minority students.
We see it on this forum routinely – The different boosts.
Wealth brings a boost in the form of tutors for high SAT scores, in the form of participating in internships, extracurriculars and sports that are typically not available to the poor.
We openly acknowledge the “hooks” of being first generation or under represented minority.
The question is, if you don’t give a boost to URM, then are you effectively actually rigging the system against URM – especially lower class URM.
Let’s put it this way – If a school were to extensively value legacy (who are predominantly white), then you are rigging the system in favor of continued minority under-representation.
But I don’t know if the best “correction” is simply to give a boost to the relatively advantaged upper middle class URM student.
I do absolutely believe schools must strike their legacy systems if they do strike affirmative action. Keeping legacy without it would lead to great injustice. (and getting back to my own situation, my daughter would greatly benefit from my legacy status at 2 prestigious schools… so this would hurt my family personally).
That’s irrelevant to the Constitutional and legislative issues at hand.
The Court does not ask whether the University is serving it’s citizens – The question is whether it’s legal or not. The Court does not directly decide policy questions.
The Court is considering 2 basic questions:
1 – Is UNC violating the 14th Amendment by using race.
2 – Is Harvard violating the Civil Rights Act of 1964 by implicitly discriminating against Asian applicants.
Obviously, all women’s colleges can limit themselves to women. Gender gets treated differently.
But HBCUs and Catholic Universities, etc — They are not allowed to discriminate based on race or religion. There is a reason they are called “H” BCUs as opposed to BCUs. They have a history of serving the black community, but they are open to all applicants. And Catholic Universities certainly admit people of all faiths and backgrounds. Georgetown is only about 40% Catholic, and even employs a Rabbi for its Jewish students.
I haven’t listened to the transcripts from yesterday, but followed a couple of people who were live tweeting during the arguments.
Can you address what happened at the UCs after prop 209 passed? A justice asked SFFA about that, saying the proportion of URMs declined afterwards (and Asian proportion rose). And currently the URM proportion is lower (especially Hispanic) than in the overall Cali population, and Asians higher. The SFFA person replied that’s not correct, or they see it differently?
Also Harvard ug currently has a higher proportion of Asians (3x+) than in the general population, so I’m not sure what SFFA’s goals are here? Do you expect Asian percentage to increase at H if they lose this case?
Are these cases only about the undergrad piece of H and UNC?
I think you summed up the first point quite well. Yes, when Prop 209 passed, minority enrollment decreased. Now, from a liberal Justice perspective – that would be used to support the argument that actual equal protection must allow affirmative action, as it is necessary to correct past/ongoing imbalances – And point to prop 209 as a lesson.
From the Conservative perspective, it’s “no matter how worthy diversity might be as a goal, you can’t legally get there with discrimination.”
As to Harvard – Yes, they already have a high proportion of Asians. And that’s WHY affirmative action discriminates against them – Because they are “over represented.”
If we go back a couple of generations, Harvard realized they were admitting too many Jews. Jews were an ambitious immigrant group taking advantage of public schools and pursuing higher education in disproportionate numbers. So Harvard started using “holistic reviews” and other methods in order to cut back on the number of Jews.
The argument is that the same thing is happening to Asians now – That if admissions were solely on merit, Asians might be even more over-represented. And that affirmative action is therefore discriminating against them.
We have that playing out in NYC schools to a great degree – The competitive admission high schools (like Bronx Science) traditionally used a test to determine admission. Within the Asian immigrant communities of NYC, they set up tutoring centers… those communities took the tests extremely seriously. As a result, when considering only the merit test, Asian students became very over-represented, while URM groups continued to be very underrepresented. And thus, NYC has explored other ways to make the admission process more diverse. But the Asian community believes such changes discriminate against them.
It did seem that both H and UNC struggled to answer what the benefits of diversity are…especially when Justice Thomas specified academic benefits. I don’t know if it was an H or UNC lawyer who said it benefits ‘class discussion’. As we know, many classes have no discussion component. It seems they could have been better prepared for that question.