Supreme Court’s affirmative action decision sets ‘race-neutral’ standard in college admission decisions

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When the Supreme Court cut affirmative action out of college admissions programs Thursday, it did not outlaw the goal of achieving diversity, but it set a new “race-neutral” standard for considering applicants.

That term – “race neutral” – does not appear in the opinion of the court, written by Chief Justice John Roberts, which states that colleges and universities have “concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin.”

But when Roberts clarifies that students can still refer to their race in admissions essays, explaining challenges they’ve overcome, he and the majority are buying into the idea of race neutrality.

Justice Clarence Thomas, who wrote his own concurring opinion, uses the term “race neutral” repeatedly, offering it as an antidote to affirmative action.

Pointing to efforts in California and Michigan to enroll diverse classes at top universities even after voters in those states ended affirmative action, Thomas says race-neutral policies can “achieve the same benefits of racial harmony and equality without any of the burdens and strife generated by affirmative action policies.”

Justice Sonia Sotomayor shot back at Thomas and the majority, rejecting the term.

“The majority’s vision of race neutrality will entrench racial segregation in higher education because racial inequality will persist so long as it is ignored,” she wrote.

For more on this view, read this piece in The Atlantic by scholars Uma Jayakumar and Ibram Kendi: “‘Race Neutral’ Is the New ‘Separate but Equal.’”

If the experience of California and Michigan – where voters ended affirmative action programs years ago – is any indication, we can expect that the representation of Black and Latino students at top-level universities will fall.

Those states argued in briefings to the court that their race-neutral efforts have not been completely successful, particularly at top-tier, flagship public schools, in creating environments that are inclusive for all.

California has, according to its brief, tried race-neutral measures that “run the gamut from outreach programs directed at low-income students and students from families with little college experience, to programs designed to increase UC’s geographic reach, to holistic admissions policies.”

While it has made strides, it says, there is a shortfall “especially apparent at UC’s most selective campuses, where African American, Native American, and Latinx students are underrepresented and widely report struggling with feelings of racial isolation.”

In California, half of the college-age population – 18-24 – is Latino, according to data from the Public Policy Institute of California. Compare that with just 27% of enrollees for 2022 at the University of California’s nine undergraduate campuses who the UC system categorizes as Hispanic/Latinx.

On the other hand, less than 13% of the college-age population is Asian, compared with 38% of UC enrollees.

A little more than quarter of college-age Californians are White, compared with 18% of UC enrollees.

Five percent of UC enrollees are African American, which is about on par with the 5.6% of college-age Californians who are Black.

The figures change in comparison with the system overall at UC Berkeley, the system’s flagship undergraduate campus, where a smaller portion of entrants in 2022 were categorized as African American / Black (3.6%) and Chicanx / Latinx (21.1%), and more were White (30.7%) and Asian (52.1%).

It’s also interesting to note that the Supreme Court exempted military academies from the decision. They can, presumably, still utilize affirmative action even though they are the higher learning institutions over which the federal government has the most control. The court, according to the majority opinion, feels the academies have “potentially distinct interests.”

Those interests were perhaps outlined by former military leaders who wrote a brief last year arguing affirmative action aided national security.

Meanwhile, even though race is off the table as a determinative factor, schools like Harvard University can and still will very much take into account whether an applicant’s parents went there, how much their parents might be able to donate and whether an applicant can help their sports teams.

“While the actual language of the Supreme Court will come across as very intellectualized and esoteric, as if in a classroom, in reality, how will this work?” wondered Laura Coates, CNN’s chief legal analyst, appearing on the network Thursday.

“How will you be able to have certain color blindedness but then at the same time allowed to take into account one’s experiences when race has been a part of that? That’s the devil in the details of every affirmative action case.”

CNN’s Nicquel Terry Ellis wrote about what the data suggests will happen:

A study by the Georgetown University Center on Education and the Workforce found that colleges and universities are less likely to meet or exceed their current levels of racial diversity in the absence of race-conscious admissions. They are also less likely to reflect the racial makeup of the population graduating from the nation’s high schools.

Zack Mabel, a researcher for Georgetown’s Center for Education and the Workforce, told her race-neutral practices have not driven the diversity many colleges hoped for, and some students are simply not applying. Read more from Terry Ellis.

Creating a more equitable and representative workforce has been a public aim in corporate America, where companies have created diversity, equity and inclusion, or DEI, departments. Multiple corporations – from Apple to IKEA – asked the Supreme Court to allow affirmative action to continue so that their potential workforce is more diverse.

But efforts to recruit students of color in the race-neutral, post-affirmative-action world will be complicated in states where there is a growing backlash to diversity efforts.

CNN’s Leah Asmelash recently wrote:

More than a dozen state legislatures have introduced or passed bills reining in DEI programs in colleges and universities, claiming the offices eat up valuable financial resources with little impact.

“The ruling by the Court’s six Republican-appointed justices prevents higher-education institutions from considering race in admissions precisely as kids of color, for the first time, comprise a majority of the nation’s high-school graduates,” writes Ronald Brownstein, a senior editor at The Atlantic and a senior political analyst for CNN.

He suggests the decision will “widen the mismatch between a youth population that is rapidly diversifying and a student body that is likely to remain preponderantly white in the elite colleges and universities that serve as the pipeline for leadership in the public and private sectors.”

Rather than ease social tension, he argues, the new race-neutral requirement could actually propel it.


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