Affirmative Action Has Been Gutted. Here’s What That Means for Students.

Supporters of affirmative action in higher education rally in front of the U.S. Supreme Court before oral arguments in Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina on October 31, 2022, in Washington, DC. (Chip Somodevilla / Getty Images)

Affirmative action in college admissions, as we know it, is over. The conservative-led U.S. Supreme Court ruled today that colleges and universities can no longer consider race as a factor in their admission processes.  

Many legal analysts had expected the decision, because as attorney and NBC News, MSNBC and CNBC legal analyst Danny Cevallos notes: “Affirmative action has been chipped away at over time by the court.” What this means for the future of diversity on college campuses — and, ultimately, greater access to career and wealth-building opportunities for students of color — remains to be seen.  

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To make sense of it all, Cevallos lays out what high school and college students should know about the admissions process going forward. His comments have been lightly edited for brevity. 

Let’s start with the basics: How did we end up with affirmative action in college admissions? 

Cevallos: The idea of affirmative action dates back many years, and arguably began with the Nixon administration involving government contracts. The modern affirmative action landscape as it relates to universities really began with a case called Regents of the University of California v. Bakke in 1978. Allan Bakke was a white applicant to University of California, Davis’ medical school who sued over its rejection of his admission. He argued that he was next in line and that he was discriminated against. Strangely enough, the Supreme Court ruling in the Bakke case was not a majority opinion. It was a fractured opinion and it was the first time we really started moving away from the idea of affirmative action remedying past discrimination and more toward thinking of affirmative action as achieving a compelling interest of diversity on campus.

How did affirmative action work in practice until now? 

Cevallos: The Bakke case held that quotas are bad. One of the things the court permitted in 2003 was using race as a factor in admissions. In other words, it’s as if you’re in the marching band or you play a sport — race could be a factor as well.

In the past, the court has upheld Harvard’s admissions method as a good example, which is ironic because Harvard was what was being challenged in this most recent case. Without any guidance, the only way schools knew if their affirmative action policy was constitutional was to find out when it got challenged. And since every university did its own thing, thousands of different universities were doing different things.

One example that Harvard argued was that yes, we triage based on race. In the current Supreme Court case, schools provided a lot of testimony that they do a “first pass” that might look at race, but when they conference the applicant at the end, the race factor is no longer a factor.

There are many studies that say affirmative action is successful in its goal to diversify student bodies? If it works, why must it end?

Cevallos: Universities argue, of course, that affirmative action has led to more diverse campuses. The plaintiffs argued that you don’t need to make race-based decisions to achieve diversity. You can do it based on other classifications, like socioeconomic status, which is not a “suspect class,” like race, so you won’t get into constitutional trouble there. 

One of the things affirmative action is always going to have difficulty with is defining diversity itself. Is diversity at the University of Wyoming the same as diversity in a state university in New Jersey and do we measure it by the state or should it be national?

I was listening to oral arguments for this case and they discussed the 2003 affirmative action case Grutter v. Bollinger, in which Justice Sandra Day O’Connor essentially said, “Well, look, this is something that has to have an end date.” Even the Supreme Court case that upheld affirmative action said it must end. But an issue that nobody asked about [in the most recent oral arguments] was the day a university concludes they’ve achieved the diversity they want, they have to stop whatever they’ve been doing, according to the Supreme Court. But won’t that just regress to not having a diverse student body? It’s not a mountain top that you climb and plant a flag in. It’s an admissions policy that you would have to maintain.

When we talk about affirmative action in other instances, it usually doesn’t apply to just race. It usually also includes gender, disability and veteran status. But to be clear, this decision only strikes down considering race in college admissions, correct?

Cevallos: Yes. The court has said in earlier cases that the goal of diversity at college campuses is not limited to race; it’s overall diversity. But the question before the court was whether racial preferences achieve that overall diversity. Unfortunately, there are no simple answers.

It should be noted though, that while the court’s decision today affects colleges and universities, it does not apply to military academies.

If you’re a rising senior of color applying for college next year, what does this decision mean for you?

Cevallos: It means a lot. Universities using race conscious admissions policies will likely violate the Equal Protection Clause, but the related issue of whether or not in your entrance essay you can write about your experience of overcoming discrimination as a member of a particular race, has survived, according to Justice Roberts’ opinion. The two are not the same.

If you’ve already been admitted into college for the fall, will this decision affect you?

Cevallos: No, no, no, it won’t be retroactive. That would be awful.

Should we expect that this decision means that campuses will become less diverse?

Cevallos: The easy answer is yes, but the plaintiffs in this case suggest that’s not the case, that you can achieve diversity through non-race-based means. The one they most often point to is admissions preferences based on socioeconomic status or from geographically impoverished areas. 

One of the famous systems is the Texas system, which I believe granted admission to the top 10% of every class at every high school, every top 10% got into the University of Texas system anywhere they wanted to go. And I believe the argument there was that it was successful in achieving diversity. But you could always argue that universities could be better in one area or better in another area without a working definition of diversity.

Should this decision change how students of color apply to college and universities? Should it discourage them from applying to elite schools?

Cevallos: No. Here’s why I don’t think so: Even if universities stop considering race, somebody who is a minority or has a unique story will still come through. The court has already signaled that your essay is fair game. The Supreme Court’s decision will not end diversity on college campuses. It’ll just end the use of race to achieve that interest of diversity on campus.

Diversity is still important on college campuses, but universities can effectively no longer use race to achieve diversity.