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CU Boulder Today: What SCOTUS Ruling on Affirmative Action Means for American Higher Ed

On Thursday, the U.S. Supreme Court issued a landmark ruling effectively ending the practice of affirmative action in college admissions. Admissions officers at colleges and universities across the country can no longer directly consider the race of applicants as they decide who to admit to or reject from their halls of learning.

Kevin Welner is a lawyer, professor in the School of Education at CU Boulder and director of the National Education Policy Center. He has been closely following the two cases that were decided together by the court, Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina. He discusses how the ruling might change the face of higher learning in the United States—and steps that colleges and universities can still take if they wish to address a lack of diversity in their student bodies.

How did we get to this point?

The Supreme Court was considering two different cases, one from University of North Carolina at Chapel Hill, which is a public university, and one focused on Harvard College, which is part of a private university. The challenges were both from an organization called Students for Fair Admissions, which is an advocacy organization created by a former stockbroker named Edward Blum. The focus in the cases was largely on whether or not the affirmative action policies were discriminatory against white and particularly Asian American students.

Were you surprised by how the justices decided those cases?

We all pretty much knew what the court was going to do. It was highly telegraphed. There was no real surprise that they took the case and no surprise in how it was decided. But it was the nuances that we were interested in.

What nuances did you pick up on?

What we see is this interesting shift. Interesting, as in I don't want to be a college admissions officer right now. But it’s a shift from a consideration of race or ethnicity as part of a holistic analysis of an application file to consideration of how individual applicants’ race or ethnicity has impacted their lives. 

Race as race can no longer be considered as part of the admissions process. But race as part of an individual story can be. If you’re applying, you can still say, ‘My racial identity has given me a lot of really interesting experiences. Some have been enriching, others have been devastating, but I've overcome them.’ 

It sounds like prospective students won’t be barred, in that case, from talking about how race has shaped their lives?

In fact, Justice Jackson in her dissent really does a great job of providing an amazing American history lesson. She explains in very clear language how race and ethnicity have played this enormously important role historically in the U.S. and continue to impact people in the U.S. to this day.

If you're Native American or African American, it's not hard to imagine how your race or ethnicity have played an important part in crafting your opportunities to learn, your economic situation, your treatment by police, your family's employment opportunities. 

A lot of court watchers were focused today on the use of so-called racial ‘proxies.’ Can you explain what they are?

In places where affirmative action is, or has been, barred by state law—including California, Florida, Texas, Michigan—many public universities and colleges had to go back to the drawing board. What a lot of these places did was to think, ‘Well, how do we maintain some diversity in our student body?’ 

They applied different types of racial proxies. The most common was to admit students who were in the top of their high school classes. That took advantage of the fact that America is a highly segregated place. A high school graduating class will oftentimes be overwhelmingly white or overwhelmingly Latino or overwhelmingly African American. 

Those proxies were inadequate for a lot of reasons. But they did something.

What did the court say about those kinds of admissions criteria?

The concern was that the U.S. Supreme Court in these affirmative action cases would not just prohibit the consideration of an individual's race in a direct way, but also indirectly—say, barring these other factors as proxies to increase racial diversity.

The court did not do that. Toward the end of the majority opinion, however, the court does caution that colleges and universities can't cynically use this idea of essays or interviews as a sort of backdoor to reinstitute these types of policies that they're holding unconstitutional.

It seems like you’re suggesting that this won’t be the last affirmative action case to appear in front of the Supreme Court. Is that so?

I would expect that Students for Fair Admissions will continue to litigate these issues. This was a fairly narrow opinion, and there are important issues that were not addressed. For example, the court makes very clear that this is a case about the admissions process. It's not a case about scholarships. It's not a case about support provided to students once they get to campus.

What advice might you have for people who will be applying to college next year?

Tell the story about you. Don't be hesitant to tell that story and to connect it to the history of the U.S. in both good ways and bad ways.


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Daniel Strain

Daniel Strain is a science writer and media relations specialist at the University of Colorado Boulder. ...