The final chapter in affirmative action within college admissions?
by Nicole Fries
(Nicole is an alumni of the University of North Carolina at Chapel Hill and a devoted Tarheel basketball fan. Currently she is in her second year at ASU’s Sandra Day O’Connor College of Law.)
Although the Supreme Court has not yet fully decided the merits of race as a factor in college admissions within last year’s case of Fisher v. University of Texas, affirmative action is likely to come before the Supreme Court against in it’s next term. A group named Students for Fair Admissions (SFA) has brought two separate suits in federal district court alleging unfair racial preferences in the admission policies of the University of North Carolina at Chapel Hill (UNC-CH) and Harvard University. These two universities were chosen by SFA because they each utilize a different theory when factoring race into admission policies. The claim against UNC-CH is largely based on an amicus brief submitted by the school on behalf of the University of Texas in Fisher. UNC-CH’s current plan is based on a racial “plus factor” which the complaint alleges is more like a dominant factor. There UNC alleged, “that if it were required to use race-neutral admissions, such as a percentage plan where the top students at each high school are guaranteed admittance, nonwhite underrepresented students would increase from 15 percent to 16 percent. But the change would cause the average SAT scores of the entering class to drop by 56 points, from 1317 to 1262, and would cause slight drop in the average GPA.”
The lawsuit charges that the school should be more concerned with the 200 point different between the average SAT score of an Asian American admitted student and an African American admitted student. However the percentage of athletes at UNC that are African American is disproportional to the percentage of the student body that identifies as the same race. The school itself acknowledges that that percentage of the student body has been decreasing to just 7.7% in 2013.
The claim filed against Harvard charges that the fairly stead proportional racial makeup of undergraduate classes year after year gives rise to the assumption of racial quotas in admissions. The Harvard theory is considered a “holistic approach” where a range of criteria are considered when evaluating an individual. The complaint alleges that due to high numbers of Asian American applicants and restricted quotas of this same demographic, Asian American applicants are held to a higher standard than other applicants.
In Fisher the Supreme Court set up a two-step test to determine whether a college admissions program that include race as a factor is being discriminatory. The first step provides considerable deference to the university’s “good faith” claim and judgment that it is using racial diversity to achieve educational benefits on campus. However the second step moves the burden of proving the requirement of a racial factor onto the university. Proof is required that the university tried and was unable to achieve its racial diversity goal on campus with methods that didn’t use race at all, as well as a showing that the racial factor in admissions is being used in as limited a way as possible. However the Supreme Court did not decide what would constitute that requirement that greater racial factors would required to meet diversity goals on campus. The Fifth Circuit is currently trying to decide that since the case is remanded and their decision, if appealed, would bring Fisher back to the Supreme Court once again.
The Obama administration has written amicus briefs on behalf of the University of Texas and argues that because the university has still not met its diversity goals, any admissions plans going forward would have to use race as a factor in order to reach those goals. Earlier this year affirmative action’s bite was reduced by the Supreme Court when Schuette v. Coalition to Defend Affirmative Action held that an amendment to Michigan’s constitution that prohibited using race as a factor in college admissions for state colleges and universities did not violate the Equal Protection Clause. Proponents of affirmative action says that cases like Schuette will decrease the numbers of racial minorities that attend college, and since Michigan’s amendment took effect black enrollment at undergraduate and law schools has decreased 30%. A quarter of the US population lives in states where racial bans in admissions are already in place.
Yet some critics of affirmative action say that they are not trying to decrease diversity in colleges across the country, just that allowing race to be a dispositive factor in admissions can prevent other important elements such as socio-economic status from being relied upon. Others, like Chief Justice Roberts, hope the Court will steer toward a color-blind future and allow the best candidates to be admitted, regardless of any kind of “plus factors,” including race.
Regardless of how either side feels, the Court has been narrowing the scope of affirmative action and looks like it may do so once again. Schuette did not address traditional legal issues related to affirmative action, instead holding that bans on race factors in admissions did not violate the Equal Protection Clause. Fisher narrowed the scope of legal analysis when a court looks at a university’s admission program and requires the university to prove that they are unable to achieve their diversity goals in any other way than the factors they use in admissions. The Fifth Circuit, and likely the Supreme Court, still must weigh in on what that necessary “limitation” on a racial factor in admissions would look like. These two complaints by SFA allege that the universities’ admission policies do not meet the compelling government interest requirement under a strict scrutiny analysis for racial classifications. (Because Harvard receives federal funds a “government interest” test still applies.) Due to the Constitutional implications a classification such as race can have in admission policies, the Supreme Court may be pushing schools to find other non-constitutionally protected classifications to utilize in admissions and achieve the same diversity goals. However the major problem with that direction would be that diversity goals are usually written to specifically address racial percentages in educational institutions, not socioeconomic backgrounds, language abilities, or residential zip code.
My initial reaction when I read about this filing was one of shock and anger that the dynamically educational experience I received at UNC-CH could appear discriminatory to others. I regularly describe my time at UNC and use the word diverse to refer to both the opportunities made available and the student body. However, in writing this post I’ve realized just how unique a situation college admissions is, especially one in which to fight racial legal battles over. Most schools do not publicize their checklist, algorithm, or magic characteristics that will cause them to chose to admit one student over another. I doubt that many schools even have any of these, instead using thousands of thankless man hours to read the achievements and dreams of the country’s high school students and find those that rise to the top of their piles.
Especially when diversity is something a school prides itself on, such as UNC-CH, University of Texas, and many other state schools, removing that tool from an admission department’s kit can make achieving those goals incredibly difficult. An additional burden placed upon state universities is the mission to best serve the citizens of their state. Both the University of Texas and UNC-CH have allowable quotas in favor of in-state students to further their mission of serving the students of THEIR state first and foremost. If racial plus factors become impermissible, would these state citizen diversity quotas also be fair game? The complaints recommend preferences based on zip code or socioeconomic status, since those could both be similarly associated with the minority races that these schools are hoping to achieve a greater proportion of through admission policies. With the number of international students growing every year, could national origin quotas be implicated? Many of these international students are much better prepared for college than American high school students, in fact America ranks thirtieth in the world for high school math performance. With these two new complaints being prepared for trial, all I do know is that I wouldn’t want to be a college admissions officer, or a Supreme Court Justice, facing down the future of affirmative action.
 Mulhere, Kaitlin. “2 New Challenges to Affirmative Action.” 18 Nov. 2014. https://www.insidehighered.com/news/2014/11/18/lawsuits-allege-affirmative-action-violations
 Dennison, Lyle. “US newly defends race as a college plus factor.” 2 Nov. 2013. http://www.scotusblog.com/2013/11/u-s-newly-defends-race-as-college-plus-factor/
 Craven, Julia. “Only 98 of nearly 4,000 new first-years are black males.” 10 Oct. 2013. http://www.dailytarheel.com/article/2013/10/only-98-of-nearly-4000-new-first-years-are-black-males
 Pearson, Sophia and Greg Stohr. “Michigan Affirmative Action Ban Upheld by U.S. High Court.” 22 Apr. 2014. http://www.bloomberg.com/news/2014-04-22/michigan-affirmative-action-ban-upheld-by-u-s-high-court.html
- B. But wouldn’t that just be convenient for the plaintiffs in these two complaints without actually addressing any of the larger problems? Personally, I hope the Supreme Court hasn’t begun to take discretionary appeals because they benefit a tiny few at the expense of many.
 Chappell, Bill. “U.S. Students Slide in Global Ranking on Math, Reading, Science.” 3 Dec. 2013. http://www.npr.org/blogs/thetwo-way/2013/12/03/248329823/u-s-high-school-students-slide-in-math-reading-science