In a landmark judgment, the US Supreme Court on 29 June ruled the race-based admissions at Harvard College and the University of North Carolina as illegal. The 6-3 ruling dominated by a conservative supermajority effectively puts a closure to a decades-long effort to diversify higher education in America. The petition filed by an anti-affirmative action coalition called Students for Fair Admissions (SFFA) vociferously argued against the
race-conscious admission programme which was contrary to the Equal Protection Clause of the Clause of the Fourteenth Amendment to the US Constitution. Leading the majority ruling, Chief Justice
John Roberts, a longtime critic of affirmative action and the main architect of the historic judgment remarked that “many universities have for too long wrongly concluded that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learnt, but the color of their of their skin. This Nation’s constitutional history does not tolerate that choice.”
The petition filed by an anti-affirmative action coalition called Students for Fair Admissions (SFFA) vociferously argued against the race-conscious admission programme which was contrary to the Equal Protection Clause of the Clause of the Fourteenth Amendment to the US Constitution.
The judgment is likely to have chilling effects across colleges and universities in America which have made efforts to diversify their student pools by using race as one of the factors in admissions. The immediate effect of the ruling would be the likely decline of college graduates from racial minorities particularly Black Americans, Latinos, Hiics, and indigenous groups, which by extension can impact the supply of qualified graduates and business leaders to major companies.
A short history of affirmative action in the US
The main aim of affirmative action (AA) is to guarantee equal opportunities for historically disadvantaged groups or minorities in education and jobs. Unlike India’s reservation system which was enshrined in the 1950 Constitution, AA in the US came out of an
Executive Order issued by the Kennedy administration which expected government contractors to adopt “affirmative action to ensure that applicants are employed and that employees are treated during employment, without regard to their race, creed, color, or national origin. It may be noted that affirmative action was pushed for in the background of the sustained civil rights movement in the 1950s, particularly to improve opportunities for Black Americans who had to suffer centuries of racial discrimination. The executive order received further push from President Lyndon Johnson’s administration. Thus, the
first official affirmative action policy was introduced (based on the historic Civil Rights Act, 1964) in 1965 as an executive order. With President Richard Nixon’s endorsement of the executive order in 1969, AA policies enjoyed bipartisan support. This was followed by the passage of the Equal Opportunity Act and numerous federal incentives to firms and contractors to provide preferential benefits to minorities in jobs, higher education, and contract licenses.
What is unique about AA in America is that it gained major traction amongst the private sector, especially private schools, colleges, and universities such as Harvard to lead numerous initiatives to improve student diversity on campuses. Moreover, the policy was proactively embraced by corporate America. Thousands of top private enterprises, particularly
Fortune 500 companies, used diversity, equity, and inclusion to meet the goals of workforce diversity. Educational institutions and companies used multiple factors including race to improve diversity in classrooms and the workforce.
The policy was proactively embraced by corporate America. Thousands of top private enterprises, particularly Fortune 500 companies, used diversity, equity, and inclusion to meet the goals of workforce diversity.
The race-conscious diversity initiatives received judicial endorsement in the landmark Supreme Court ruling in 1978, in the
Regents of the University of California versus Bakke case. Subsequent judgments such as the
Grutter vs. Bollinger judgment in 2003 backed race-conscious diversity initiatives in the universities. This apart, AA, especially the diversity rationale, gained widespread support among policymakers, educators, and leaders of America’s elite institutions of higher education. Harvard, Yale, and Stanford took the lead to formulate their diversity rationale in student admissions which impacted other peer institutions.
Positive outcomes
Affirmative action has had many positive outcomes for historically disenfranchised Black Americans and other disadvantaged minority groups. There have been hundreds of empirical studies pointing to the positive effects of AA, particularly the diversity initiatives in higher education. One of the most comprehensive and standout assessments of AA in the sphere of education was carried out by William G. Bowen (President of Princeton University) and Derek Bok (former President of Harvard University). The study report involving several experts which was published in the name of “
Shape of the River”
<1> in 1998 found an increase in black students from a mere 0.8 percent in 1951 to 6.7 percent of the entering class in 1989. They attributed this rise to race-conscious admission policies. In addressing the question of whether blacks squander the opportunity they are offered, the study established a lower dropout rate for blacks than the national average, especially in selective schools. Further, the report found most Black Americans who were admitted to these institutions under AA succeeded in college, established successful careers, and assumed major leadership roles in their communities. Many subsequent studies have found wherever AA programmes have been banned, there has been a significant reduction in black students admission rate. For instance, the
University of Michigan, which had outlawed race-conscious AA, saw black students enrolment decline to 4 percent in 2021 (against 7 percent in 2006). Similar trends were found at the
University of California Berkeley in 2016 and 2017 as the university management decided to do away with the use of race in admission.
Will the judgment bring an end to affirmative action?
How would the recent Supreme Court judgment affect AA policies in America? Will it bring an end to decades-long policies promoting diversity and inclusion?
Many analysts feel the ruling is likely to embolden the critics to attack the programmes on diversity, equity and inclusion long practised by universities and corporate America. Further, so many workplaces that have embraced diversity rationale in their recruitment and promotion to help Black Americans and women will face renewed scrutiny. Yet, those tracking AA programmes for a long time believe that the Supreme Court ruling would have a very limited
impact on existing diversity initiatives. For them, the ruling itself has left enough room for diversity. For instance,
Chief Justice Robert remarked “Nothing in the opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise”.
Many subsequent studies have found wherever AA programmes have been banned, there has been a significant reduction in black students admission rate.
What matters more is that Fortune 500 companies and top business groups have come out
strongly in backing the ongoing diversity and inclusion programmes. Many elite public and private universities too have voiced their commitment to maintaining the current trends of diversity in student bodies. While the ruling would persuade some institutions and businesses to drop race as a factor in their diversity programmes, it may push many to go an extra mile to accommodate more candidates from racial minorities and other disadvantaged populations. Unlike India, where reservation policy is enforced by the government, AA in the US is largely voluntary and much of the criteria are left to the universities and companies select. Moreover, AA enjoys broader bipartisan support in American societies notwithstanding its many controversies and polarising influences. A number of opinion polls taken soon after the judgment found the
majority of Americans supportive of race-conscious diversity programmes.
Thus, while the anti-affirmative judgment will be difficult to reverse for a long time considering the overwhelming dominance of conservatives in the Supreme Court, it will continue in many forms and may receive more renewed interest among its votaries. Finally, a positive outcome of the anti-affirmative ruling could be universities like
Harvard will be forced to revisit their current methods of selection (using criteria like athletics, legacy, dean’s list, and children of faculty and staff) that has drawn vociferous criticisms from many quarters.
Niranjan Sahoo is Senior Fellow at the Observer Research Foundation.
<1> Two education leaders William Bowen, president of Princeton and Derek Bok, the former president of Harvard University, studied an enormous database of records comprising more than 80,000 undergraduate who matriculated at twenty-eight selective colleges and universities in 1951, 1976 and 1989. These institutions are representatives of elite schools that have used diversity rationale and affirmative action policies in their selectivity of admitting students. See William G. Bowen and Derek Bok (1998).
The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions, Princeton University Press.
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