Brandeis professors discuss the future of Affirmative Action
The Supreme Court's decision challenges universities to find alternative ways to boost diversity on campus, as well as jeopardizes other civil rights reforms.
On May 19, 1998, a senior at UCLA was arrested with 84 other students for unlawful assembly after occupying Royce Hall to protest Proposition 209, which banned the consideration of race, sex, and ethnicity in public education, employment, and contracting. These protests were called “Days of Defiance,” and it criticized the decline in enrollment of students of color following the passing of Proposition 209.
That senior was Prof. Chad Williams (AAAS), whose personal experiences illustrated the enduring fight for Affirmative Action and against the proposition’s negative effects on diversity in higher education.
On Sept. 21, the African and African American Studies Department and the Heller School for Social Policy and Management held an academic panel to explore the future of Affirmative Action. Maria Madison, the Heller School’s Interim Dean, moderated the discussion between panelists Professor Williams, Assistant Prof. Amber Spry (AAAS) and Professor Anita Hill (Heller).
On June 29, the Supreme Court outlawed college Affirmative Action programs, overturning decades of precedent. In a 6-3 decision in the SFFA v. Harvard and SFFA v. UNC cases, the majority decided that race cannot be used as a factor in college admissions because it violates the 14th Amendment’s Equal Protection Clause in the U.S. Constitution. The Equal Protection Clause is “the constitutional guarantee that no person or group will be denied the protection under the law that is enjoyed by similar persons or groups. In other words, persons similarly situated must be similarly treated.” The nonprofit organization Students for Fair Admissions, created by Edward Blum, argued that race-conscious admission programs at Harvard University and the University of North Carolina were unconstitutional. According to a Reuters article, Blum’s goal is “to erase racial preferences intended to boost diversity in American life.”
Hill pointed out that the Supreme Court did not acknowledge Asian American plaintiffs in the case. Specifically in Students for Fair Admissions Inc. v. President and Fellows of Harvard College, Students for Fair Admissions argued that Harvard discriminated against Asian American applicants through their personality ratings.
Harvard claims that they rate applicants on five criteria that do not consider race: academics, extracurriculars, athletics, recommendations and personality. According to The Hill, “At trial, Harvard showed that while Asians scored higher than whites on academics and extracurriculars, and similar to whites on recommendations, they scored lower on personality and much lower on athletics.” Comparing applicants with similar academic achievements showed that Asian people always received the lowest personality ratings. When SFFA argued that Harvard discriminated against Asian Americans by giving them lower personality ratings, “Harvard, in response, argued, and the lower courts agreed, that SFFA could not prove that Asians’ low personality ratings were the result of discrimination.”
The fact that discussions on the Supreme Court’s ruling did not pay attention to the concerns brought by Asian Americans highlights how conservative groups have used Asian Americans to pit minorities against each other. The case implied that the majority of Asian Americans are against Affirmative Action, but polls show mixed data. AAPI Data’s 2020 Asian American voter survey found that 70% of Asian Americans approve of Affirmative Action when it’s defined as programs increasing minorities’ access to higher education. Moreover, 53% of Asian Americans supported Affirmative Action, but 76% of Asian Americans “overall said they did not think colleges should consider race or ethnicity as a factor in admissions decisions,” according to a 2023 Pew Research Center survey.
Spry hopes that “we will forge collaboration and community over competition.”
Hill echoed similar sentiments: “I have a hope that we can in fact take those shared experiences and shared pains and turn them into shared aspirations.”
Across the U.S., colleges and universities have been deliberating on how to implement new policies to bolster diversity on campus without violating federal law. Making SAT and ACT test scores optional, prioritizing low-income students, decreasing students’ financial burdens, establishing holistic admissions, creating personal essay questions focused on the effects of race on the applicant’s life, and eliminating legacy admissions are all possible solutions. Hill and Spry emphasized that a welcoming environment that fosters full participation in available academic opportunities is essential for cultivating diversity on campuses.
Moreover, increasing the number of pathways to university can also help strengthen inclusion. Percent plans state that a certain percentage of the top students of a high school class are guaranteed admissions to some universities. For example, Texas’ 1997 “Top 10 Percent Plan” automatically admits students in the top decile of their high school class to any state-funded university. There have been some adjustments at individual Texan universities, like the University of Texas at Austin, who changed their guaranteed admission rate from 10% to 6% in 2017 because of an increase in Texan high school graduates and out-of-state applications. California and Florida also have similar plans.
Geographic plans aim at admitting more students from specific geographic locations, and colleges can target areas with high populations of racial minorities. For example, Harvard University promotes admission of residents in “Sparse Country” states, which include rural states like Montana, South Dakota, and West Virginia.
Additionally, increasing outreach to marginalized groups in middle and high school can help connect students to the college admissions process early on and provide more resources to aid their applications.
The consequences of the Supreme Court’s decision on Affirmative Action is far-reaching and could negatively impact Diversity. Equity, and Inclusion offices, history curriculums, and other racial equality reforms, such as protections for minorities in the workplace. Hill talks about the prohibition of DEI offices and jobs, as well as renaming these offices to exclude words like race, diversity, equity, and inclusion, to avoid contravening the Supreme Court’s decision. Florida Gov. Ron DeSantis approved a bill in May that outlawed public colleges and universities from funding DEI programs. Moreover, Texas Gov. Greg Abbott banned DEI offices and mandatory diversity training for students and employees in June. Both the anti-DEI legislation and the Supreme Court decision are fueling future efforts to eliminate DEI programs.
Hill connected anti-Affirmative Action and anti-DEI movements to campaigns against the teaching of critical race theory. “Lessons about slavery and Jim Crow are likely to make white children feel guilty,” Hill said, and this belief drives legislation against diverse school curriculums. She mentions an Oklahoma bill, H.B. 1775, that “unconstitutionally restricts discussions about race and gender in K-12 public schools and higher education.”
“The only way that you can make sense of the Supreme Court decision is through a willful distortion of history,” Williams added. He criticizes the U.S.’ inability to address its history of pervasive racism and compensate for intergenerational inequality.
All the panelists were concerned that the Supreme Court ruling would incite backlash against companies’ hiring practices that consider race. For example, a section of the federal program, the Small Business Administration’s 8(a) Business Development program, was deemed unconstitutional by a federal judge in July. The program was designed to increase marginalized groups’ access to government contracts, and after the ruling, being a racial minority was no longer enough to automatically qualify as socially disadvantaged per the program's guidelines.
The panelists touched on the roles that power and dispossession play in discussions on Affirmative Action. “When we talk about the issue of Affirmative Action, or any political issue for that matter, we need to ground our discussions in an analysis of power,” Spry said. Politics revolves around who gets what, when and how. Acquiring and maintaining power is connected to education because prestigious degrees help people obtain quality jobs, move up the socioeconomic ladder, and transfer wealth to the next generation. The fight against Affirmative Action programs highlights fears of losing power that are rooted in the racist belief that one race is better than the others. Hill pointed out that these fears have a historical basis in settler colonialism, Manifest Destiny, and more.
Spry emphasized that a zero sum view of success is the only perspective presented to us and argues there are alternative mindsets, such as “Shifting our orientation toward power to be one that’s not additive, but rather one that is multiplicative.” Spry used respondents’ reactions to welfare on surveys as an analogy to conflicting views on Affirmative Action. When scholars survey people and ask them about their attitudes toward welfare, Spry stated that the response was overwhelmingly negative. However, if the question is rephrased and respondents are asked how they feel about giving to the poor, people are much more willing to help others.
Anti-Affirmative Action advocates’ appropriation of the same language that the Civil Rights Movement used also came up in the discussion. Spry stated that it is not a coincidence that the group Edward Blum partnered with, Students for Fair Admissions, has a very similar name to the Student Coalition for Fair Admissions, a group of Asian American students and partners pushing for Affirmative Action programs in the UC system in the 1980s. “The names of these groups claiming to experience discrimination by Affirmative Action, voter protection policy and economic equity efforts,” Spry said, “are using the very language of equity and inclusion in their titles.”
The discussion ended by prompting the audience to reflect upon the fact that white people are not devoid of race. An audience member asked the panelists how to respond to some common questions white people direct towards Black people about Affirmative Action, such as “Did you get into this university because you’re Black?” Spry suggested reframing the question and asking them, “Well, did you get into this school because you’re white?” Affirmative action critics that argue the policy discriminates against white people fail to take into account the historical economic, social and political privileges that already favor their admission chances.