What Happens if the Supreme Court Kicks Affirmative Action Off Campus?

One way they've worked towards this the list of things the admissions officers consider when they pick up an application, like test scorers, special skills, sports, even where a student grew up, includes the applicants race or ethnicity. The result more non white students get into the nation's top schools.

But this term, the U. S. Supreme Court will decide on two challenges to this way doing things, And if the court's new conservative majority strikes down affirmative action in college admissions, it will have enormous repercussions for who gets into the nation's top schools and who doesn't. To explain all this, Bloomberg senior reporter Greg Store joins me. Now, Greg,

you've been covering with the Supreme Court for a long time. Yeah, something like since n whatever that is, So you have seen the Supreme Court take up affirmative action, and before can you just kind of spell out for us exactly what are the two cases that the Court is going to hear now and why the results will have such a huge effect. Let me start in the late nineteen seventies when the Supreme Court said for the first time that universities could consider race as a means of ensuring

diversity in their classes. The Supreme Court reaffirmed that precedent in two thousand three, and now these two cases before the Court, involving Harvard and the University of North Carolina, potentially could overturn those precedents and say universities cannot consider race as an admissions factor. How do we get to the current system of using diversity and admissions. Yeah, that's

a really good question. The year and that was when the Supreme Court decided this case called Baki that had to do with the University of California and the medical school. There the importance of including young men and women at both undergraduate colleges and the medical schools so that they other younger boys and girls. May I see, Yes, it is possible for a black to go to University of

Minnesota or to go to Harvard or Yale. That was Attorney Archibald Cox, who represented the University of California, which was arguing in favor of affirmative action, and Alan Back, who brought the case, was a thirty five year old white man who would be rejected twice from the medical school,

and you see Davis. In that case. It was a splintered court, and a majority of the court rejected the idea that schools could consider race as a means of addressing widespread societal discrimination, the vestiges of slavery and Jim Crow and all that. The Justice who was in the middle of this case, Louis Powell, said, Ah, but what they can do is, because universities have a First Amendment interest in having a rich, diverse academic environment, they can

consider race for this purpose of diversity. Here's Archibald Cox again. This is essential if we are ever going to give true equality in a factual sense to people, because the existence or non existence of opportunities, surely we all know shaped people's aspirations when they're very young. So that ended up being the rationale that for the past almost fifty years universities have used and pointed to. So when it comes to schools, what is affirmative action? How does it

actually work? So most selective universities, not as many as there used to be, but most selected universities say, we want to ensure a certain amount of racial diversity, but also other types of diversity on campus, and in order to get there, with some applicants, we are going to consider their race as one of many factors in the

admissions process. So both Harvard and North Carolina do what they call holistic review, and in many cases, one thing they consider is this person is from an underrepresented minority group and that will add something to our class. You mentioned holistic review exactly what is a holistic review of a student's application. Holistic review is the notion that the university looks at the entire file. It doesn't assign points because you had a three point seven g p A

or because you come from a rural area. It's more of a kind of we're going to consider all those things, but we're not going to have rigid criteria for how we determine whether or not you're admitted. And the Supreme Court made that distinction back in two thousand and three. Yeah, and that was in Gruder versus Bolinger. We've got a clip here of the arguments between Justice Sandra Day O'Connor

and Attorney Kirk Colbo, who represented Barbara Gruder. She was a white woman who was rejected by the University of Michigan Law School. Race is impermissible because of the Constitutional command of equality. The university is certainly free to make many different kinds of choices in selecting students, and to look for all kinds of different diversity, experiential diversity, perspective diversity,

without regard to race. But race, because your honor of the constitutional command of equality must be beyond the bounds. You say, that's not it can't be a factor at all. Is that it is that your position that it cannot be one of many factors? Are you your honor? Is it? Race itself should not be a factor. If you have holistic review where you consider race as just one quality in a person's application, that's okay. What you can't do, the court said, is automatically give every black applicant ten

points just because they're black. And so it's not strictly that there are a certain number of slots set aside in each class for people in different underrepresented minority groups. It's part of a broader consideration to try to get a wider mixture of people with different perspectives in life experience. Right, So we're not talking about a quota. That's what a lot of people think of a affirmative action is a quota system. Yeah, and the Supreme Court has said you

cannot do that. Now, what exactly a quota is? You know, we could have a debate over that. Back in two thousand three, University of Michigan said, what we're trying to achieve here in the Supreme Court said it was okay, is what we call a critical mass. It's not like a Harden and Fast number. But we want to make sure we have enough students of minority groups that they can feel like individuals and not representatives of their race. And everybody can see that members of one race don't

all think alike. And so now what we have are two cases, one involving Harvard University, one the University of North Carolina. And they're being brought by this group called Students for Fair Admissions. Exactly what are they challenging here and and what's this group? So it's a group that is basically run by one guy. His name is Edward Blum. He's a longtime opponent of racial preferences. They represent students.

There are in these cases no particular students that are challenging the admissions practices, but this group says we're advocating on behalf of students who feel like they have been discriminated against. In the case of Harvard, they say students who are paying the price for the Firm of Action program at Harvard tend to be Asian American students who are getting kind of docked in the admissions process, and students for Fair Representation argueser's basically a ceiling on the

number of Asian American students that Harvard will admit. So that's Harvard. The u n C case University of North Carolina is a little bit different. So the u n C admissions program is somewhat similar in that they use holistic review. They don't, you know, assign points for certain test scorers or other qualities. That case tends to focus more on whether u n C looked at so called

race neutral alternatives. Well enough, there's some Supreme Court case law that says schools have to look at that first and see if it's at least feasible, and the argument is they didn't do that. So the cases are being considered separately instead of together, but on the same day. They are on the same day. There's two primary differences between the two cases, in addition to the fact that

they're just two different admissions processes. One is that Justice Katangi Brown Jackson, because she was a member of the Harvard Board of Overseers, has recused from that case. So she's not going to take part in the Harvard case. She's only going to take part in the North Carolina case. The other difference is that because North Carolina is a state run school, the constitutions Equal Protection Clause applies to it. The equal Protection Clause doesn't apply to Harvard because it's

a private entity. The Harvard case is not about the Constitution. It is about the Civil Rights Act of nineteen sixty four, and in particular Title six of that law. And that law basically says, if you receive federal funding, which almost all universities do, you cannot discriminate on the basis of

a lot of things, including race. The Supreme Court has said that the standard under that law is basically the same as the equal Protection clause, but they are at least different kind of legal arguments, So that could potentially cause some different analyzes in the two cases. So what

are you listening for in these arguments? So going into this argument, there is an awful lot of reason to think that the Court's conservative majority is likely to overturn at least the two thousand three Greater decision, which reaffirmed that universities could use race as an admissions factor. And this was the case. The court heard two cases that year. One involved the undergraduate program at the University of Michigan, one involved the law school, and the court sort of

split the difference. It upheld the law school program, and that ended up being the blueprint that a lot of universities around the country could use to continue trying to diversify their campuses. So I'll be listening to anything that kind of cuts against the sense going in that the Court is inclined to over rule Grouder and abolish the use of race in admissions. Certainly, we're going to be listening for what the newest Justice, Cantangi Brown Jackson, has

to say. She sort of laid down a marker in an earlier case involving voting rights, where she argued that the Constitution allows the government to consider race for a lot of purposes. The Equal Protection Clause was put in place after the Civil War with an idea that the government could do things that would take race into account.

And I'm going to be listening for Chief Justice John Roberts, because while we think of John Roberts, and he has been in other cases like the abortion case last term, the justice who doesn't want to go as far as some of his more conservative colleagues in the context of race, he's been very outspoken. He in a case shortly after he became Chief Justice, famously said that the way to stop discrimination on the basis of race is to stop

discriminating on the basis of race. He would like to see a color blind constitution, at least based on his past comments. So be listening to see if there's any change with anybody on those things they've said in the past. When we come back. My conversation with Greg Store continues.

If the Court does overturn affirmative action in college admissions, will that have any sort of knock on effect beyond universities when it comes to job hiring the workplace or or elsewhere it might well and one thing to pay attention to. Let me just start with the workplace. Uh, this is both a constitutional case and a case under the Civil Rights Act. If the Court says we're looking at the Civil Rights Act to say you cannot consider race as a factor, well, that Civil Rights Act, a

different provision of it also applies to private companies. And so some people are wondering is the next step after the court. If the Court says you can't consider race as an admissions factor, will the court then say, okay, let's take another look at whether companies can consider race as a factor in hiring another job related activities. If they make it a constitutional case, then it is easier to see that principle applying to other areas of law.

So for example, voting and the extent to which a state may consider race as part of redistricting. That's the kind of thing that could be implicated if the Court issues a constitutional ruling in this case. The Supreme Court will hear the cases, but there won't be a ruling until later this year, probably next year, where I think we're probably looking at one of those cases that where the decision comes out at the end of the court's

term in in late June. Is there a chance, because they're deciding these separately, that you have different outcomes in each case. It's certainly theoretically possible, given the reality of

this court. At a practical matter, it's probably unlikely, But it could be that the arguments end up being very different because one is focused on what the Equal Protection Clause means, what it meant when it was ratified after the Civil War, and the other one drills down into the words of the Civil Rights Act and what those mean. And you're expecting, if you're going to look into your crystal ball without holding you to your answer, what do

you think the outcome will be. It's really hard to see how the Supreme Court leaves intact the ability of universities to consider race in the admissions process. Given the sixth three conservative majority, it's a really heavy lift to think, even if the three liberal justices vote the way we think they probably will, to say universities can keep doing this. To see how they're going to get two more votes to do that without John Roberts being one of them,

that's a pretty tall order. Greg Star, thanks for being here, sure thing. If it's Greg says, the Supreme Court does abolish affirmative action in higher education, what are schools gonna do? Kelsey Butler is a reporter on Bloomberg's Equality team, and she's been talking to admissions officers all over the place to find out. So we're just talking to Greg Store, who says, pretty much, Supreme Court is going to overturn

affirmative action in college admissions. You and Patricia Hurtado teamed up to try to find out what will that mean, What is the future of college admissions look like? How do you go about measuring that? So what we did was we looked at the places where affirmative action has

already gone away. There are ten states where affirmative action has disappeared in the admissions process, and we looked at the data to kind of show what has happened, what tactics those schools have employed, if they've gone far enough, if they haven't, what's been most successful and what has it.

So let me just clarify here is that under the law now, public schools and states can decide not to allow affirmative action in admissions, and if they change this by some report means no states will be allowed to use it, exactly. And in a lot of those states, voters have actually gone to the polls and basically said that they don't want affirmative action in the admissions process.

And you know, that's something that has happened in California, in Michigan, and you know, we've seen the ramifications of that and what has happened to college admissions in those states in the aftermath of affirmative action no longer being

allowed in admissions. Basically, none of the tactics, aside from considering race and admissions, goes far enough and pretty much every scenario, the most underrepresented groups end up being less likely to get admittance into the most elite institutions pretty much. And what are the most under represent any grips. This had a huge impact on African Americans, on black students, and we also saw a huge impact on Native American and Indigenous students. And we also saw a drop off

in many cases in Latino enrollment. And that's as the nation has become more and more diverse, and you know, as Latino population has grown, the trend line hasn't really been the same in those most selective schools Selective schools essentially are those schools that are hard to get into, that there's a chance you might not get into. It's not a school that necessarily just accepts everyone with open arms.

So their desirable schools and also schools where people who graduate tend to be attractive to employers and tend to do pretty well in part because they went to a school that has a really good reputation. It's not just about going to college. It's also about the fact that the most elite institutions have a lot to do with

who becomes powerful in our nation's society. If you go to a school with a really recognizable brand name, you're going to be much more likely to be able to rise the ranks in your career, rise the ranks and government become a kind of powerful player in shaping our society for the future. College, of course, has always been a path to upward mobility, and it also affects how much money you make, what sort of income you have, in what you're able then to do for your children

years later. Certainly, and I thought this was such a great and fascinating example out of California. The University of California system has had to contend with this since affirmative action was banned in the nineties, there was a huge study done on not only how many people got in the door and there was a steep drop off in black and Latino students getting into the most selective schools, but also what happened after. And this was an analysis

of over ten thousand students. Black and Latino students were less likely to earn over a hundred thousand dollars a year, and they were also less likely to kind of sign up for majors that would then set them up to be higher earners in the future. So again not just about getting in the door as a freshman, but also about what your earning potential, what you're kind of bank

account is going to look like in the future. Kelsey walk us through what it looks like in a school that does allow racial preferences in building a student body. You know, what has come up in my reporting and talking to admissions officers is that race informs so much of people's identity and who they are. When you're a high school student. It might determine where you live, what opportunities you've had up to that point. It's not the

only deciding factor it's just one of them. And you know, I do really want to emphasize that race, though it's part of the consideration, is not the only thing. And none of the students that are getting admitted that our minority students to these elite institutions are underqualified. They're all getting in the door because they deserve to be there. Now, schools that do this, is it effective? Certainly? And you know, the way that we really see this is um what

happens when it goes away. I think a really good example of that is the University of Michigan. They've been extremely vocal about kind of what happened at their institution when affirmative action went away in two thousand and six, the last year before race based admissions went into effect, of the schools undergrads were minorities and UM then affirmative

action was banned. It took until one for the percentage of minority students to hit that level again, and that took millions of dollars, a very long laundry list of concerned efforts to kind of boost the enrollments of minority students, and it still took over a decade without affirmative action. There is going to be a drop off in the most underrepresented cohorts of students. Kelsey, please stick around. We'll talk more after the break. So what are schools that

don't allow racial preferences in selecting students? What are they doing instead? So, one interesting thing that I didn't really kind of think about before I started reporting this story is that, yes, admissions is one part of the process,

but it's just that one part um. So a lot of the schools that I talked to said that they're kind of preparing to like widen the funnel for the people that are applying to their schools, So that means doing marketing campaigns, having their own alums that are part of underrepresented groups, reach out to their high schools, um developing relationships with community groups or high school counselors in underrepresented areas to basically get the pool of applicants to

be more diverse, so then in the end, the student body can be more diverse. And that doesn't move the needle quite as much, quite as fast, but it is an option. How are they preparing for the day when they will no longer be allowed to use affirmative action? What are they doing to try to make up for it. There's a lot of different solutions that schools have done,

um you know, in the absence of affirmative action. One of the most popular is admitting the top let's say four percent or ten percent of each high school in a state. So we saw that in Texas, which went before the Supreme Court. The Supreme Court said that was constitutional.

What it does, even though it looks race neutral on the face, it kind of relies on the fact that neighborhoods are segregated, so you have the best performing students from a let's say a neighborhood with mostly minorities that have an opportunity to go to schools. And the idea behind that is that it still provides a pathway for those from underrepresented groups to get admittance to the best schools because of the way race really is baked into

so many structural things. In the US. Another proxy is considering socioeconomic status. So we know that on average, a white family has six times the wealth of a black family in the US, and so if you kind of filter for socioeconomic status, you know, it's not perfect and it won't get you to a dent of where you need to be, but it can sometimes get underrepresented groups that have been financially disadvantaged in the door without blicitly

using race. Another option is getting rid of legacy admissions. We know this comes up a lot when we talk about these very elite institutions, and there's a big one, right if you went to Harvard or Yale, your kid has a much better chance of getting into Harvard Yale exactly. So we know that schools are trying to do away with legacy admissions. Amherst just recently said that they're going to do it, and they think that this is going to be one of the things that's going to help

boost diversity at the school. There was a recent study that showed that legacies aren't necessarily more qualified or better students, but they do tend to be less racially diverse the non legacies. So it's just another kind of tool in the tool belt that schools are considering and thinking about. Is that really realistic, because you know that sort of legacy enrollment is also a big driver of fundraising certainly,

and it is a really big consideration. You know. One thing that came up a lot was this I idea of all this kind of calculus that admissions offices now have to do. How much money they're going to be willing to spend too, like I said, grow that funnel so that their applicant pool can be more diverse. How much money they're potentially willing to give up from things like legacy admissions, and how much does this matter to them? And how much money are they willing to put forward

to maybe only move the needle a little bit. When you look down the road five or ten years from now, given how long it's taken for schools that did away with fromtive action to recoup the losses in underrepresented students, how big a dip can we anticipate seeing in students who otherwise would have been admitted, and how long will it take to bring it back up? So what I expect that will happen in the very near term. In the years immediately followings, we'll see a sharp drop off.

For example, in California at u c l A, we saw the percentage of black students dropped by like fift So we'll see that immediate drop off. And for those schools that don't put the resources, the creativity, and the time into continuing to reach out to underrepresented groups, to coming up with novel solutions to using proxies. They're never going to catch up because the schools that have done all that and spent millions of dollars over a decade

are still barely getting there and even falling ashore. As it is, we haven't really seen the all the policies that the schools are going to potentially put in place. And you know, one question that is a really really big one is schools want to know where the line is going to be drawn. Are they able to still come up with recruiting programs that target let's say, black students or is that not even going to be allowed? So where is that line drawn? Where? How far are

they allowed to go? Essentially like where does admissions process per se start? Kelsey Butler, thanks so much for taking the time. Thank you. You can find more stories by Kelsey Butler and Patricia Hurtado and Greg Store on Bloomberg dot com. Thanks for listening to us here at the Big Take the Daily podcast from Bloomberg and I Heart Radio. For more shows from my heart Radio, visit the i

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