Ending Affirmative Action Will Not Make Schools ‘Colorblind’

Harvard student Ishika Vyas outside of the Supreme Court on October 31, 2022, the day justices heard oral arguments in the latest affirmative action case. (The Washington Post/Getty Images)

This summer the Supreme Court will decide the fate of affirmative action in college admissions. It isn’t the first time the policy, aimed at increasing the number of students from underrepresented communities, has been examined by the highest court. But this is the first time it will be considered by a bench stacked with conservative justices. 

The plaintiff, Students For Fair Admissions, believes that college admissions — and American society more broadly — should be colorblind. However, they adhere to this principle only when it benefits white (and sometimes Asian American) students. They haven’t brought a lawsuit to the Supreme Court over considerations that historically give white people an advantage over people of color, such as legacy admissions or athletic recruiting. This difference makes clear that affirmative action critics are not interested in colorblind admissions so much as they are in maintaining the status quo.

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While legacy admissions don’t receive as much attention as affirmative action, they too have a great impact on who is accepted into prestigious universities. Three-quarters of elite colleges engage in the policy whereby applicants who have a parent alumnus are given an admissions boost. And that boost is substantial: One study found that legacy applicants are over three times as likely to be admitted to a college compared to nonlegacy applicants with similar credentials. At Harvard, while just 1 in 20 nonlegacy applicants are admitted, the rate is 1 in 3 for legacy applicants.

Legacy admissions began a century ago, according to sociologist Jerome Karabel, when white Anglo-Saxon Protestant university leaders wanted to maintain their stronghold over elite education at a time when young Jewish men were increasingly gaining admission.  

Prior to the 1960s, few if any selective colleges enrolled students of color. Many Southern colleges – including the University of North Carolina, one of the schools at the heart of the Supreme Court case — had explicit policies against admitting Black students until the 1954 Brown vs. Board of Education decision outlawing racial segregation in education. Given this history, white Protestant students are more likely than every other racial group to benefit from a legacy boost. After all, just two generations ago, Black college applicants had no chance of becoming UNC alumni.

Justice Ketanji Brown Jackson made this comparison pointedly during oral arguments. She described two students applying to the university:

“The first applicant says, ‘I’m from North Carolina. My family has been in this area for generations since before the Civil War. I would like you to know that I will be the fifth generation to graduate from the University of North Carolina. … I want to honor my family’s legacy by going to this school.’ The second applicant says, ‘I’m from North Carolina. My family has been in this area for generations, since before the Civil War, but they were slaves and never had a chance to attend this venerable institution. … I want to honor my family legacy by going to this school.’”

The lawyer for Students For Fair Admissions acknowledged that under his argument, the former could have a boost in admission but not the latter. This is clearly not a colorblind policy.

Another mechanism that gives some white applicants an edge is athletic recruiting. A recent analysis published in the Journal of Higher Education found that well-off white teens have multiple advantages that make them the biggest beneficiaries of athletic recruiting in college admissions. These include access to a wide range of sports in their schools and opportunities to try specific sports, like water polo, golf, fencing, sailing and lacrosse.

Why are universities allowed to continue these practices while affirmative action is so heavily scrutinized? Ironically, because we have laws designed to protect African Americans from racial discrimination.

The 14th Amendment was passed during the Reconstruction era to protect the legal rights of African Americans after slavery was abolished. Nearly a century later, Congress passed the Civil Rights Act of 1964 to prohibit the racial and gender discrimination that had continued. These laws mean that any consideration of race is subject to “strict scrutiny” under the law. So, entities like elite educational institutions that consider race must convince judges that this racial consideration is minimal, and that they have a compelling reason for doing so. These institutions, however, can consider qualities known to be tied to privilege, such as legacy status, ability to pay or athletic skill in sports available only to affluent families.

In other words, laws designed to create racial equity are being used to promote the idea that white people are experiencing racial discrimination. The plaintiffs and their backers say they want to eliminate attention to race — and are using explicitly racial laws to do so.

If race neutrality really is the end goal for critics of affirmative action, they must look further than one policy. But there is a reason they don’t. Even if colleges ended all policies that don’t promote colorblindness — including legacy admissions, athletic recruiting and benefits to children of big donors — those changes would not be enough to compensate for the decrease in Black and Latino representation likely to ensue if affirmative action ends.

And that is surely what the real goal is: to end any and all policies aimed at providing African Americans, Latinos and Native Americans equal opportunity to attend elite colleges.

In an analysis of Harvard admissions data, the plaintiffs’ own economist makes clear that ending practices like legacy admissions reduces, but does not eliminate, the need for attention to race in order to foster a diverse student body. Because considering race helps compensate for advantages held by white applicants stemming from differences in educational opportunities related to residential segregation and wealth, as well as cultural bias among teachers and in standardized tests. 

Affirmative action is a policy that has been proven to help level the playing field between white students and students of color — it fosters higher graduation rates for Black and Latino college students, and leads to greater numbers of Black doctors and other professionals. It also enriches the college experiences of white and Asian American students, many of whom come from schools with few Black and Latino students.

But the plaintiffs don’t seem to want the kind of “neutrality” that could give Black, Latino and Native American students a pathway to financial security and perhaps even to generational wealth. That would disturb the longstanding order of things.