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Yale 62

Supreme Court Strikes Down Affirmative Action in College Admissions

Affirmative Action

By Lee Bolman

Last Thursday, a 6-3 majority in the Supreme Court struck down the use of race in admissions decisions at Harvard and the University of North Carolina, arguing that they “unavoidably employ race in a negative manner” and “involve racial stereotyping.” The headlines blared that the ruling killed affirmative action, but Chief Justice John Roberts’ majority opinion seemed to open a side door when he wrote that “Nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university.” In other words, you can’t consider race, but you can consider an applicant’s story.

Even as officials at selective colleges, including Yale, expressed unanimous disappointment with the decision, they began asking admissions directors to design essay prompts that take advantage of the life story opening. Rising seniors are rethinking what to write in their essays. Some Asian-Americans try to play down their ethnicity while Blacks and Latinos punch it up.

The decision affects almost all selective colleges except for the military academies, which were specifically excluded with little explanation. Yale President Peter Salovey issued a statement indicating that the university would comply with the Court’s ruling while holding fast to its basic values. In a letter to alumni interviewers, College Dean Pericles Lewis and Admissions Dean Jeremiah Quinlan outlined a 5-part strategy for adapting to the court’s decision while preserving Yale’s commitment to “enroll promising students of all backgrounds”:

1. Expand outreach programming to attract students in under-resourced and historically marginalized communities

2. Support pipeline programs that promote college preparation for students from low-income, underrepresented, and rural communities

3. Continue to invest in financial aid to make Yale affordable to everyone

4. Continue to support four cultural centers: the Afro American Cultural Center, La Casa Cultural, the Asian American Cultural Center, and the Native American Cultural Center

5. Establish a new Office of Educational Opportunity to promote educational equity and ensure that all undergraduates have ready access to Yale’s educational, advising, and co-curricular opportunities

Will those measures be enough? Experience at elite institutions forced by state laws to eliminate race as an admissions factor shows that an immediate drop in African-American and Latino students is likely. An internal study at Harvard estimated that eliminating race as a factor in admissions would reduce Black and Hispanic enrollment from 21% to 7% of students. Schools like University of California-Berkeley and the University of Michigan have found that race-neutral proxies like socio-economic status and zip code don’t always move the needle very much. African-American enrollment at Berkeley at 3% of the student body is still only half what it was before a ballot initiative in 1995 killed affirmative action. President Biden last week came out in favor of adversity measures such as the “disadvantage scale” employed at the University of California-Davis for admission to its medical school. The measure, which gives a boost to applicants from poor families and under-served neighborhoods, has made Davis one of the most diverse medical schools in the U.S.

Several college presidents commented to The Washington Post that the decision will also increase pressures to reduce or eliminate legacy admissions preferences, which have long been criticized as “affirmative action for white people.”

Chief Justice Roberts criticized the admissions processes at both Harvard and the University of North Carolina as “elusive” and “opaque.” But early signs suggest that admissions processes may become even more opaque as universities shift to less emphasis on quantitative measures like tests and class rank and more on personal qualities assessed via essays and recommendations. Opponents of affirmative action could get the opposite of what they hoped to achieve.

The decision will likely open a Pandora’s Box of questions and litigation. Harvard Law Professor Jeannie Suk Gersen poses questions like: What if the university decides to eliminate SAT scores because that will impact diversity? What about recruiting heavily in certain areas? Harvard argued that if affirmative action was eliminated, the number of black and Latino students would drop considerably. What if it doesn’t? Does that mean Harvard is evading? Could other ways of considering race be viewed as illegal?

Harvard Law Dean Martha Minow added additional questions: Does the decision mean that diversity and inclusion efforts within a university are no longer lawful? Might it apply to similar efforts in the private sector? (The New York Times reports that some law firms are already advising their corporate clients to re-examine their diversity initiatives.) Does it affect other protected categories like gender? Minow’s colleague Randall Kennedy lamented that the worst thing about the decision is that it frames racial discrimination as invidious in any context. He noted that former Justice John Paul Stevens once asked: how could a sign saying “Blacks are not welcome” and one saying “Blacks are welcome” have the same legal status? That question will be generating controversy for the foreseeable future.

In a separate 6-3 decision along party lines last week, the Supreme Court blocked a Biden administration initiative to forgive billions of dollars in student loans. Lenders loved the decision, but the president was not happy. On Thursday, he castigated the court as “not normal” after the affirmative action decision. On Friday he complained that Republican hypocrisy was stunning, given that some members of Congress who opposed student debt relief were among the many business owners who had taken loans during the pandemic that were later forgiven.

We welcome your comments below.

11 comments to Affirmative Action Strike-Down

  • James A Lewis

    So if I’m an admissions officer, I can consider an applicant’s athletic ability, musical talent, scientific aptitude, background and everything else–except race. And if I happen to think about an applicant’s race, I’ll need to step away from the table when the admissions commitee discusses that applicant, so that the admissions committee’s process is not tainted by my “violation” of Title VI and/or the Constitution.

    Some people live in the real world. The Justices do not.

  • Larry Price

    The reaction of the Establishment to the Court’s decision has not been very laudable. Like petulant children, they have made various threats. The first threat is: if we cannot discriminate in favor of blacks, you cannot discriminate in favor of legacies. This ignores the obvious fact that while race discrimination is illegal, discriminating in favor of Junior, your layabout grandson, is not.

    The second threat is to evade the decision. There is a lot of signaling going on among the leaders of the Education Establishment as to how the process can be changed (e.g. essays instead of SAT’s) so as to allow business to continue as usual. In Lee’s memorable phrase, to make the process even more “opaque”. This obvious attempt to comply with the letter of the law while totally disregarding the spirit of the decision is one of the most unattractive aspects of the reaction to the Court’s decision.

    I suspect that these attempts at evasion will be unsuccessful. If admissions are based on an objective standard (all 1600 SAT applicants. all legacies, even the layabouts, and all athletes who can throw a 100 MPH fastball) and it produces uneven results, it can be easily defended. If the standards are subjective, and produce uneven results, defense is much more difficult. Harvard’s defense was that Asian candidates received much lower scores for “character.” The Court totally disregarded it.

    I suspect that there will be attempts at evasion. And after a few losses in court with accompanying eye-watering financial judgments, the Education Establishment will comply.

  • Lee, you exemplify the Class 62 deep thinkers in your article so beautifully. You express my feelings that are very similar and you include the complexities of the issues. Your article describes more in depth thinking than my more biased aggravation at the ruling. But I have my reasons.
    Classmates, please bear with my long expression of feelings. Here is why I believe in the Yale Admissions program before the Court ruling. I think they made a horrible ruling. I understand the meaning of horrible.
    One day in my Senior Year in high school, in March of 1958 the principal of my public high school pulled me out of a class to speak to me in the hallway. There he asked, “Son, how would you like to go to Yale?” I was shocked to the core and confused. My family was poor because in 1955 our house was flooded and underwater for three days. My parents had saved $300 (not a typo) to fund my potential college education. For the Principal to say that Yale wanted to interview somebody like me, did not compute. The principal said, “Yale was looking for students with a different background, academically strong, and a potential future leader, and did not have the wherewithal to attend Yale, so wouldn’t apply.” ME! I drove down from Naugatuck to New Haven that morning and then two hours later I was a classmate of yours. So, the selection of other students who were less educated, less financially able to commit and even think of applying to Yale. That’s me. I am not Black but I am part First Nation and I am a first-generation immigrant. Yale knew that I would be different and that difference would be good for my classmates. I am deeply indebted. I believe my Yale education has had a wide positive global impact. Thank you Yale.

    I’m also on the Yale Alumni Schools Committee. Probably many of you are. I have interviewed students every year for the last 10 or 15 years. I don’t make any extra effort or give extra credit because the applicant is from a Hispanic or African American background. Tucson has a majority of those ethnic groups., I truly interview the students for the person they are and what they can contribute to Yale, and then the world. I’m also on the Board of the Big Brothers Big Sisters for about fifteen years. I have been reaching out to the disadvantaged community in the greater Tucson area in other ways. Many, if not most that I have interfaced with, have become community leaders. Some kids from about fifty years ago have come to visit me. I learn that they are successful contributors to their communities. So, I am a believer that diversity is good. Planned diversity is good. I did it in my own company. I have hired Hispanic, African American, deaf, blind, LGBT, and even a paraplegic. I have had a female CEO. Every one of those performed spectacularly. So, diversity is good. I had to buck the “system” many times when I did the above. The other employees soon saw I did right and it then became an issue because they vied successfully for these new employees.

    To continue, I think that the five-step plan is promising and has a lot of potential. But as the news cast media has been talking about the ramifications of selective processes I see that the Supreme Court has made a terrible decision. They did wrong. It will not make the country better. It is a horrible world example. Let’s say selectivity in a business leader for boards or for management positions in the company was judged by this ruling. I have never found that the person I selected didn’t fill out the requirements. Each learned to be very powerful and to contribute to the benefit of the company. There were hard feelings and controversy at first but every time without exception people saw the light.

    So now. Your article points out that the Hispanic and African American students applying and invited will drop immensely. Non applicants thinking they’re not the “type” of students Yale would accept won’t apply. Me. Or they wouldn’t under normal circumstances be able to afford to go to a place like Yale. They would not be accepted by the class of Yale students that are revered as super special.

    And as far as being an offspring of an alumni weighs more in admittance as seen from the statistics. Statistically why are more children of alumni anywhere admitted more than others? By a few percent. Easy. We know ever so well that most Yale graduates do very well, and most of their children are exposed to a higher grade of education both at home and academically in the global community. Even at the dinner table talk. So, they are at an advantage. If during an interview I don’t know that they’re a child of an alumni it will show that they are seasoned and will make a good contribution to their class. I’m willing to bet dollars to Donuts, that they will have higher test scores and articulate their hopes and dreams to me better. Without my knowing that background. So, come what may? In a blind review the school will get more alumni children in there. It should show up that way. So, making a special outreach for kids like me can be beneficial. A child of most Yale Alumni will not be concerned about applying to Yale because of the costs. So, they will statistically apply more often.

    I think the Justices have made an extremely detrimental decision as to the Characteristics of the United States of America and what it means that anybody can succeed and contribute. Having all these diverse backgrounds. I think my college roommates would tell you that I was certainly one different kid as were my high school friends. Other roommates, they could have gotten. But it turned out, I think anyway, forgive me Tim Hall and. Robert Oliver. And Bob Barnes if I use your names here, that I did bring a different cultural background. To the benefit of all. So having diversity and making room for it should be a treasured goal.

    Just Saying,
    Bob Breault Yale ‘62

  • Philip Stewart

    I am confident that Yale and many other schools will find appropriate responses within their particular situations. But I am disturbed that some in the press seems to greet the SCOTUS decision as a welcome opportunity to upbraid colleges and universities for objectives in which they were already doing the best they can. In the first place, both they and the court immediately go wrong when they fail to distinguish between public and private institutions. (I fail to see what business the court has telling private colleges how they should conduct their admissions procedures.)

    The NYT today, as it is wont to do in educational matters, gets on its high horse: “The Glaring Blind Spot in College Admissions: Economic Diversity.” Now there’s an idea which had apparently never occurred to all the misguided colleges hoping to achieve more diversity! David Leonhardt, who usually doesn’t go for such low-hanging fruit, seems to believe that admissions policy is the only thing between lots of poor kids and an elite education. Why has it not occurred to him that there is a problem of means and that public universities might well accept more of the underprivileged if their legislatures would pay for them?

  • Larry Price

    Phil, there is no difference between public and private colleges. Yale receives a bit less than a billion dollars a year from the Feds.(Most of it in the School of Medicine) With that money comes the obligation to meet all Title IX requirements. And the laws against racial discrimination apply to all organizations. So the Court is well within its rights to render decisions in this area.

  • Ken Luke

    It’s a short slippery slope to injustice when preferences are given by race to almost anything, including college admissions. ML King spoke to that in his dream: that one day his children would not be judged by the color of their skin, but by the content of their character.

  • Ken Luke

    It’s a short slippery slope to injustice when preference is given by race to almost anything, including college admissions. ML King spoke to that in his dream: that one day his children would not be judged by the color of their skin, but by the content of their character.

  • Lee Bolman

    I appreciate the thoughtful comments.

    A small update: The battle over legacy admissions is heating up. A coalition of advocacy groups is suing Harvard, alleging that legacy admissions preferences amount to racial discrimination in favor of whites. And two Massachusetts legislators have filed a bill that would impose a tax on institutions with large endowments that give preference to legacies. The estimated hit for Harvard is more than $100 million/year. It remains to be seen whether either of those initiatives goes anywhere, but they suggest that pressure to abandon legacy preferences is continuing to grow. What’s felt in Cambridge is likely to be felt in New Haven as well. Depending on the poll, a majority of Americans either do, or do not, support the use of race as one factor in admissions, but a substantial majority dislike legacy preferences.

  • Charles Merlis

    I’m a lawyer. I haven’t read the whole opinions re Affirmative Action, just excerpts from some. However, I believe the Supreme Court is highly compromised and something drastic should be done about it, a combination of impeachment and an enforceable ethics system, etc. To me, symbolic of the corruption of the Court (that personal policy is above the law) is the Elenis decision, though not necessarily on the merits but on the procedure. The Elenis case should never have been taken by the Court. It was not a case in controversy as required by the Constitution but a hypothetical: What if I am asked to design a website celebrating what I consider an abomination?!!
    I have some experience with admissions to Yale. Like Lee Bakunin (possibly a relative), my father, a New Haven boy whose parents came from Belarus in 1906, was class of ’28s. I went to my father’s 20th reunion in 1948 and regularly to football games at the bowl (from Yonkers) where we sat by portal 25 with friends of his from New Haven. I, as Lee was, was destined to go to Yale. My father went to admission conferences in the fifties where they told alumni that even better than being a high school football captain, which they had plenty was being an oboe player or from Wyoming (which may have been how Cheney got into our class), etc. Diversity of student body was always good. However, as Andover, Exeter, etc., always had so many multiple admittees, there was not a lot of room for true diversity. Thus, we had only five African Americans in our class, mostly “high yellow” and invisible as to mixed race.
    In the middle of my junior year, I quit Yale to go to New York to make my fortune in the Theater. 10 years later I returned for the second half of my junior year to an amazingly different diverse campus. 1. Girls. 2. Blacks. 3. Gay Alliance at Yale. I was elected to the Executive Committee for my senior year and worked with the administration on student issues. I graduated with ’72. In the 1980s, I interviewed applicants to Yale and gave recommendations.
    Actually, in 1957, I was rejected admission to Yale. I had graduated high school at 16 and was told if I applied next year I would probably be admitted at the mature age of 17. I made a late application (Yale was my only original choice) to my mother’s alma mater, the University of Chicago and got in. I didn’t want to go back to high school but somehow I went to Blair Academy for a post graduate year and entered Yale in the fall of ’58. Skip ahead to 2000 and my oldest son applied to Yale early admission. As a six year old, he had been misplaced in the Yale bowl and was discovered just as panic was beginning to set in. His application was deferred to May when he was ultimately rejected. That he was certainly a worthy candidate was underscored by the Academic scholarship that he received as well as graduating SUMMA CUM LAUDE from the college to which he went.
    When we were accepted to Yale there were four to five applications for each spot, now there are about 10 or more. I believe in Legacy and wished my son had been accepted as 3rd generation (plus, we also had a cousin who I believe graduated about 1912). But I, unfortunately, did not become a Rothschild and did not bring a wrestling endowment back to Yale. Nor was my name, Bush, which may have gotten George W. in. Still, I think, if a prospect is qualified and can add a 7 figure bequest to the endowment that is a plus to diversity. Biden in commenting on the Affirmative action decision, said that the people who were being accepted were all academically qualified. I was in a class with Henry Skip Gates in 1973 and he was a great addition who might not even applied 15 years before. Joy Reid was recruited by Harvard, and whatever you think of her politics, I’m sure she was a positive influence to the the thinking g of her classmates.
    In any event, I have confidence from my experience including with the Yale administration, that they are equipped to make decisions re applicants without too much interference by the government, though they did make a colossal mistake in rejecting my kid. And as to the medical school. what importance do you put to having more (always meeting qualifications) minorities accepted as statistics show that they tend to make up a larger proportion of professionals serving underserved populations.

  • Bill Weber

    You all know my feelings on legacies, but the current talk of favoring rich WHITES will soon disappear as children of non White Yale grads will apply and get admitted as Legacies.

    And the band played on.

    Bill Weber, Yale62 Communications team

  • Barry Smoler

    In both college and law school I took civil rights very seriously, participating in sit-ins, integrating previously segregated northern restaurants, and spending a summer working on civil rights for a black lawyer in a southern city. I fully recognize that it will take massive affirmative efforts over many, many years to overcome centuries of slavery, segregation and prejudice. But in law school I also had occasion to head up a project to study state anti-miscegenation laws a few years before the US Supreme Court declared them unconstitutional. Many states at various times had such laws, defining by race who could or could not lawfully marry each other. North Carolina was the most exotic, with three different categories of people — blacks, white and Indians — who could or couldn’t legally marry each other. The states were all over the lot in defining by percentages of “blood” who could or could not be lawfully married. The exercise instilled in me a very strong aversion to racial classifications of people, as it so closely resembled Nazi Germany’s equally complicated definitions of who was or wasn’t a Jew for purposes of determining who would live and who would die.
    My father grew up in a tough neighborhood on the south side of Chicago, and although he was very bright nobody in his family had any money to send him to college. My mother wanted to study journalism at Northwestern University; her parents could afford to send her to college but, living on the south side of Chicago, insisted that Northwestern, in a norther suburb, was too far away, so she went to the University of Chicago. I had a good academic record at a very high quality suburban high school, but no other distinguishing features (poor at sports and a disaster a trying to play the piano). I was turned down by Yale and Harvard but accepted at Brown, where I developed an interest in studying Chinese history and culture, so after two years at Brown I applied to transfer to colleges that had Chinese departments. Harvard turned me down again, but Yale, which for many years had the best Chinese language program in the US, educating missionaries and then switching to training US Air Force guys to interpret in air conversations between Chinese Air Force pilots, had just lured two prominent Chinese historians from Stanford, and was delighted to have me as a transfer student for my final two years of college. Thus, I became the first Yale undergraduate to major in Chinese studies. I found it personally enriching, but did not pursue it professionally, going on instead to law school, finally getting into Harvard, where among other courses I took a course in Chinese law. I ended up spending a comfortable but undistinguished career as a lawyer, most of it in federal government agencies, doing public service work that I enjoyed, making a decent living without becoming either rich or famous.
    Happily married for many years but without children or grandchildren, I have an aversion to legacy admissions. I don’t mind geographic diversity (even though Ivy colleges used it openly and notoriously when they were afraid of being overwhelmed by academically successful Jews living in New York City). I have mixed feelings about preferences necessary to fill out the sports teams I enjoy watching. And I like having the diversity of students from foreign countries, even if rich families from China have the ability to overwhelm the system.
    So where does all this leave me? I don’t know. You tell me.