Introduction
In a 6-3 decision, the Supreme Court ruled against Harvard University and the University of North Carolina’s race-conscious admissions policies, in part because, according to the decision, these policies violate the Equal Protection Clause of the 14th Amendment.1 This ruling ignores how our education system, from K-12 to higher education, reproduces racial hierarchies and systematically limits access to housing, healthcare, education, safety, and financial stability for people of color. This ruling is amoral and transparently motivated, as scholars have already pointed out, by a backlash to affirmative action based in a logic of White supremacy. And it is poised to further limit opportunities for people of color to enroll in colleges and universities that are increasingly the gatekeepers to economic prosperity, as “race-neutral” alternatives to affirmative action have been detrimental for students of color accessing selective institutions.² By taking bold action now, legislators, institutional stakeholders, and people of Illinois still have the power to make the state’s higher education environment more racially diverse than it was before the ruling.
Decades of discriminatory policy have stacked the deck against Black and Latinx households being able to access college.³ The reality is that affirmative action as previously implemented was not enough to dismantle barriers for students of color, and the pipeline to and through college reproduces inequities. Even after decades of affirmative action, degree gaps between White and Black students are as large today as they were in 1968, when President Johnson tasked the Kerner Commission to study inequalities in higher education.⁴ Many selective colleges deny people of color opportunities more often than they provide opportunities to enroll. Meanwhile, regional and open- access institutions that do disproportionately enroll students of color tend to be underfunded and reliant on student tuition, shifting the burden to pay for education onto the students who can least afford it. It is both morally and economically imperative to correct these wrongs, and this affirmative action decision adds one more obstacle to doing so.
Institutions have already pledged to continue fostering diversity in the wake of this ruling. However, history tells us that without transforming their existing policies, which privilege White, wealthy applicants in the name of selectivity and prestige, this ruling will further exclude students of color from higher education, while racial and economic stratification worsens.
Background
Past Precedent
Education is an inseparable part of America’s legacy of colonialism and slavery; it has historically, and continues to function as a sorting mechanism that contributes to racial and economic stratification. State and corporate interests, both through policy interventions and in practice, have limited educational autonomy for people of color for hundreds of years. This has taken the form of anti-literacy laws that prohibited teaching Black people to read and write; state-sanctioned segregation enshrined in Plessy v. Ferguson; redlining and school funding policies that led to disinvestment in Black and Latinx schools; school discipline practices that disproportionately bring students of color into contact with the carceral system; and constrained access to homeownership, credit, and generational wealth accumulation.⁵ While the specific mechanisms that link race and education have shifted over time, racism is deeply embedded in the logic of meritocracy that is used to justify inequities in access, resources, and opportunities for students of color.
“Affirmative action” typically refers to a set of policies emerging in the 1960s that sought to mitigate discrimination on the basis of race, gender, or religion in labor, education, and the armed forces. These policies were originally framed as moving from the overt discrimination of Jim Crow towards racial and gender “neutrality.”⁶ “Race neutrality” is itself a racial ideology that, by denying the active legacy of historical racial oppression, obscures systems of racial power and privilege that emanate from those histories. Affirmative action’s early emphasis on race neutrality ignored the way that Black people were structurally barred from accessing housing, jobs, education, and social welfare programs.
In 1978, in Regents of the University of California v. Bakke, a divided Supreme Court upheld the constitutionality of affirmative action as a tool to promote “student body diversity” as a “compelling state interest,” but not as a remedy for past oppression and its enduring legacy, which limited its effectiveness over the next 40 years. The focus on affirmative action as a tool to achieve “diversity” rather than as a remedy for oppression contributes to a decades-long pattern of advocates for affirmative action justifying integration and racial diversity in terms of their benefits to White students, regardless of the cost to students of color tasked with diversifying predominantly White spaces. The Bakke ruling was narrow, only allowing race as one of many factors, which left it more vulnerable to future challenges.
In Grutter v. Bollinger in 2003, the Court upheld affirmative action as an unquantified admissions factor, meaning that institutions could consider race in admissions but could no longer assign numerical point values. The ruling also was interpreted by some to establish that affirmative action policies had to have a clear end point. In 2016, the use of affirmative action in admissions was again affirmed as part of a “holistic” admissions policy, where race is considered as one of many factors. The discourse surrounding these cases has largely positioned affirmative action as institutions showing “preference” for Black students, ignoring both the social and material impacts of generations of structural racism and the historical reality that White women have been the greatest beneficiaries of affirmative action policies. By constraining the use of affirmative action as remediation for the enduring legacy of slavery and Jim Crow, these decisions legitimized the narrative and legal turn away from racial justice and towards “colorblindness” as a policy aim.
Institutional Response to Precedent & Impact
Since the mid-1990s, nine states have banned the consideration of race in admissions at public universities.⁷ Previous challenges to affirmative action have often been preceded by an increase in the number of people of color attending public universities and rest on the argument that race-conscious admissions policy discriminates against White and Asian students.⁸
Although affirmative action in admissions was limited in its attempts to address the legacy and impact of White supremacy in education, state bans of race-conscious admissions practices show that the alternative is worse. These bans have well- documented effects. In states where affirmative action has been banned, Black, Latinx, and Indigenous students have become increasingly underrepresented among students admitted and enrolling in public flagship universities.9 Enrollment shifts have diminished overall degree attainment and wages for Black and Latinx students in some states with affirmative action bans.10 At selective institutions, the immediate and long-term impacts of the affirmative action bans have been more acute.
In the wake of these decisions, institutions implemented new, nominally race-blind policies in the hopes of maintaining enrollment of diverse populations, but these actions failed to achieve previous enrollment levels of students of color.11 For example, universities in Texas, California, and Florida implemented an approach to admissions under which a given percentage of graduates with top GPAs from every public high school were automatically admitted. Public universities also adopted alternative metrics to boost diversity in admissions, such as measures of wealth, family income, and geography. These plans and other alternatives to race-based affirmative action resulted in increased geographic diversity and had some positive impact on racial and income diversity, but were insufficient to reverse widening enrollment gaps among students of color after affirmative action bans took effect.
The threat of litigation has a chilling effect, described by Garces et al. as “repressive legalism,” which often results in institutions interpreting and implementing stricter affirmative action policies than legally required.¹² In 2000, the 11th Circuit in Johnson v. Board of Regents of University of Georgia found the university’s affirmative action policy unconstitutional, and caused the university to eliminate the consideration of race in admissions altogether. Though Grutter clarified how affirmative action could still be used in admissions nationwide, the University of Georgia nevertheless continued to exclude race as a consideration in admissions. Although not directly implicated in the Johnson ruling, the University of Georgia’s experiences likely impacted admission policy at private universities in Georgia and universities in Alabama and Florida, which “may have further perceived the Johnson ruling to reflect declining political and social support for affirmative action policies.”13 In California, legislation provided for the use of factors other than race, such as income or geography, and while public institutions do consider these factors in admissions decisions, they are not weighted heavily enough to have a significant impact on inequities introduced by relying heavily on GPA and test scores.14
Current Case & Ruling
The recent Supreme Court case that made affirmative action unlawful was filed by Students for Fair Admissions (SFFA) against the University of North Carolina, Chapel Hill (UNC) and Harvard University. Both institutions used race as part of a holistic admissions process, but SFFA asserted that these violated the 14th Amendment’s Equal Protection Clause, speciously arguing that race-conscious admissions discriminate against White and Asian applicants and unfairly advantage Black and Latinx applicants. This decision pares back past precedent. It builds on harmful rhetoric that positions race- conscious policy as servicing “preference” rather than providing necessary counterbalance to the entrenched systems of power that privilege White people and contribute to the continued oppression of people of color. The Court’s ruling demonstrates how “race neutral” law, policy, and language—including the language Roberts selects from the Equal Protection Clause—is deployed to legitimize existing racial hierarchies under the guise of equality.
The decision significantly narrows how race may be considered in college enrollment practices, in that it can no longer be considered as a variable even within a holistic admissions process. The decision particularly cautions against policies without end dates. However, the Court states that students can still talk about how race has shaped their experiences through the admissions process, and that institutions can still consider those experiences in admissions.15 The Court also does not explicitly overturn diversity as a compelling government interest.
Six Steps Toward Maintaining or Increasing Racial Diversity
This report outlines six critical steps that can be taken to maintain, if not increase the racial diversity of students on campuses in the wake of the Supreme Court ruling. However, each of these also requires a shift in mindset toward more evolved notions of “selectivity” and “merit” in admissions, and a bold commitment to new practices for equitably serving students.
While selectivity and merit are vague and amorphous concepts, they have enormous power in the real world of college admissions. Selective colleges compete for students who they determine to be most qualified based on dubious metrics that unnecessarily filter out students of color and students from low-income backgrounds, who end up at less selective colleges. Enrolling and serving more students of color requires interrogating how selectivity, merit, and the pursuit of prestige contribute to continued educational redlining, resulting in the reproduction of social and economic hierarchies based on race and wealth. Affirmative action and other equity-based admissions policies have never been scaled enough to mitigate postsecondary barriers for students of color, possibly because doing so would challenge these unspoken principles. On a statewide scale, though, this translates to Illinoisans of color being denied the highest-value opportunities for socioeconomic mobility.16
Selective institutions will be most directly affected by this decision, since less than 7% of colleges said that race was a considerable influence in admissions decisions, and those that did were more likely to be selective colleges. Specifically, Illinois should be concerned about its two private nonprofit colleges that are currently in the top 15 colleges with the lowest acceptance rates (rejecting 93% of applicants) and its two public universities that are among the 101 most selective in the country, according to the Education Trust’s Segregation Forever? report.17 Even with affirmative action in place, they have struggled to enroll students of color; Black students represent only 4-8% of the undergraduate student body at each. Though devastatingly common among selective institutions, this lack of racial representation isn’t an immutable law, but rather a clash between the values colleges espouse and those they practice.18
Without substantial transformation of admissions policies, selective institutions are likely to see particularly wide racial equity gaps, despite attempts to implement other equity-based policies.19 The good news is that not only is it still within the power of selective institutions to change their approach, but these institutions also have substantial resources to recruit, enroll, retain, and graduate students of color.20 Doing so, however, requires each campus to first take a difficult look inward, and then to initiate bold action that presses against the status quo.
1. Make Detailed Action Plans to Expand Equitable Recruitment
Race-conscious policies are the most effective way of promoting racial diversity and inclusion on campuses. Since this ruling limits the ability of colleges to practice race-conscious admissions, institutions must make up for this with detailed public plans for how they will maintain (if not increase) racial diversity through other means. This starts with resisting repressive legalism and the tendency to shy away from inclusive language and policy, and identifying continued opportunities to embed racial equity in policy, practice, and campus climate. However, universities must also examine how existing recruitment and admissions policies structurally advantage White, wealthy students. In the weeks since this ruling institutions have restated their commitment to enrolling diverse student populations, but their effectiveness in doing so will depend on how they change their admissions, financial aid, and student services priorities.
Selective colleges will need to change patterns of recruiting from wealthier, Whiter high schools. Data is limited on where Illinois’ selective colleges and universities recruit from, which is itself a problem to address. However, what we do know is not promising. Public universities in Illinois should ensure that their student population reflects the state that funds them. Yet, the Chicago Public School (CPS) high schools that the four most selective public and private universities primarily recruit from enroll far fewer Black students and double the percentage of White students compared to the average population of the CPS district. There is already a pipeline of diverse and qualified potential students that selective institutions are under-enrolling: their transfer applicants. In 2021, Illinois’ four most selective public and private non- profit institutions enrolled 3,848 transfer students, and less than 250 (6.4%) of them were Black students. Despite evidence that significant populations of community college transfers can succeed at highly selective institutions, these institutions are underutilizing community college transfer pipelines. University of Illinois at Chicago and University of Illinois at Urbana Champaign combined to enroll 46% of public university undergraduates, but only enroll 29% of its community college transfers. Northwestern and the University of Chicago enroll 14% of private non-profit college undergraduates, but only 0.2% of its community college transfers.
Time is of the essence. UCLA’s Black students represented 7% of the total student population in 1996 when affirmative action was banned statewide. By 1998 this figure was halved to 3.4%, and 25 years later it remains only at 6%. Any delay could effectively deny Black students access to Illinois’ higher education opportunities, whereas immediate action can signal a commitment to serving racially underrepresented students that could help stave off enrollment declines. These declines are already at crisis levels – from 2012 to 2022 Black college student enrollment has dropped by 45,000 students (37%) – and must be reversed now. Massive enrollment shifts are possible; from 2002 to 2020 the state’s selective universities appeared more focused on recruiting those who can pay full price, increasing the share of out-of-state students by 16%. These universities can apply a similar process for scaling student populations, but with equity in mind.
2. Implement Equitable Measures for Admitting Students and Raising Yield
Admission
There are evidence-based methods that can be used to consider wealth, income, and student background and thereby maintain or increase the racial diversity of Illinois institutions, regardless of this ruling. The logical place to start is by prioritizing underrepresented high schools in admissions decisions. There is a strong correlation between the percentage of students from the most underfunded (Tier 1) high schools and the percentage of Black and Latinx students enrolled at each Illinois public university.21 Thus, considering high school funding tier would allow institutions to recruit, admit, and enroll more Illinois students of color.
Early decision admissions policies, whereby students commit to attending an institution before knowing their financial aid package, privilege wealthy, White applicants. Early decision applicants are three times more likely to be White than regular decision applicants. Most selective institutions admit 40-50% of their incoming class through early decision. While deemphasizing this process may bring more uncertainty to admissions departments, that’s a price worth paying to ensure equity of opportunity for students of color.
Continued reliance on standardized tests like the SAT or ACT in admissions and financial aid decisions contributes to racial and economic stratification in higher education, even at institutions that implement race-conscious policies. Test-blind admissions and financial aid policies support increased enrollment of Black and Latinx students and students from low income households.22 Research shows that high-stakes standardized tests (the history of which is overtly racist) are better proxies for income, parental education, and race than for student outcomes; rather, tests act as major barriers to admission for Black and Latinx students, low-income students, and first-generation students. As standardized testing has come under increasing scrutiny by education experts, Illinois has seen great innovation by bold institutions that have moved towards test-optional and test-blind admissions. This has been encouraged by the onset of the pandemic and limitations on in-person test administration. However, many institutions still consider standardized test scores in some capacity. Even institutions that adopt test-optional or test-blind admissions may not employ similar practices in determining financial aid packages, effectively pricing out students who were admitted but would need more aid to enroll.23 And though reforms have been recently mandated by the state, many institutions are still placing students in harmful developmental education courses by using standardized test scores, when they should qualify for college classes based on their GPA.
Student Aid
Income may currently be a consideration in determining aid amounts, and those efforts become more important in the wake of the Supreme Court decision. However, using measures of wealth instead may make enrollment goals more achievable. Wealth-building opportunities have been denied to people of color for centuries, and wealth disparities are more prominent (and potentially important for college-going) than income. Thus, they also could be far more effective in targeting students for admissions and aid. UCLA Law implemented a socio-economic status admissions metric based heavily on wealth, and saw Black students admitted at 11 times the rate of previous admissions programs, and Latinx student admission also doubled. This is also data that universities already collect, often in multiple ways.
3. Transform Campus Support Systems to Better Retain Students of Color
There are large gaps in completion rates between students of color and White students, even at Illinois’ most selective colleges and universities. Thus, even Black and Latinx students who do gain access to these institutions disproportionately leave with no degree and with more debt than their White peers.
The most common reason students have for leaving college without a degree may be the most obvious: they can’t afford it. Given America’s sordid history of obstructing wealth-building and socioeconomic mobility for people of color, this comes as no surprise. Through discrimination and redlining, people of color have been denied opportunities to own homes and pursue well-paying careers, leading to Black and Latinx American households averaging about $2,000 in wealth, compared to about $116,000 for White households. Persisting through four years (or more) of education requires wealth – to support families, cover costs related to unexpected life circumstances, and offset the wages lost in time spent learning and not working. Colleges and universities that have racial gaps in persistence and graduation should start by asking how much they expect those with almost no wealth to pay, and then examining what they’re doing to support.
Since slavery, the opportunity to better one’s circumstances through education has been denied to people of color, preventing socioeconomic mobility and removing opportunities to build intergenerational wealth that could uplift communities of color. Institutions that are expressing their desire to break with that history can take action now to help graduate the students of color they currently enroll. Evidence-based policy such as increasing financial aid, emergency grants, and access to basic needs resources can counter historical and enduring racial wealth disparities.
4. Eliminate Preference for Legacy Admissions
Selective institutions have long given admissions preference to legacy applicants. Despite the obvious conflict with notions of equity, these policies persist because there are strong financial and political incentives for doing so, since legacy admits’ families typically hold greater material wealth than non-legacy applicants.24 Unsurprisingly, legacy preference widens racial and socioeconomic gaps in postsecondary enrollment. For example, more than 35% of Harvard’s admitted White students’ parents were either donors, alumni, or faculty, compared to less than 7% of its admitted Black students. As a whole, legacy applicants are less diverse and are not more academically qualified than non-legacy applicants. In recent years, several highly selective institutions have eliminated preference for legacy admissions and the state of Colorado banned legacy preference at public universities, but 73% of the most selective schools still use legacy preference in admissions. Eliminating preference for legacy admits alone is not enough to fix all racial access issues, but it is a necessary step to avoid widening gaps in access.
Steps That Legislators, Advocates, and Stakeholders Can Take
5. Invest in Public Colleges and Universities that Currently Enroll More Low-Income Students and Students of Color
Racial inequities in higher education are fueled by disparities in the resources available to different colleges and universities. It’s not only that the most “prestigious” colleges enroll fewer students of color, but also that they have far more funding to serve student populations that require less support. While this is perhaps most extreme in the private non-profit sector, public universities and community colleges are both underfunded. In Illinois, the state doesn’t have a system for distributing appropriations to its 12 public universities, and the two universities that enroll the lowest percentages of Black students receive half of what is appropriated. Community colleges have a system for distribution, but it receives only 23% of the estimated resources needed to fund it. This issue has gotten worse over time, as the amount appropriated for each system has been cut almost in half over the last 20 years.
This is a current priority for the Illinois legislature, as the SB 815 Commission on Equitable Public University Funding is due to deliver its recommendations by the end of 2023. The Governor’s Office has prioritized making historic investments in colleges and universities, and state agencies have worked to further define, elevate, and realize these goals; this is evident throughout the Illinois Board of Higher Education Strategic Plan and through the Illinois Community College Board’s developmental education work. However, these priorities are even more critical in the wake of the Supreme Court’s ruling. To the degree that students of color are further shut out of selective colleges, regional and open- access colleges and universities will receive more of these students. Whether they have enough money to serve them depends on how legislators enact and fund these recommendations.
6. Hold Institutions Accountable for Intentionally and Transparently Recruiting and Enrolling Students Outlined Above
With bold and responsive action, institutions of higher education can take steps to become more racially equitable in the wake of this decision. However, this will only happen if legislators, institutional stakeholders, and most importantly, the public, demand it. While colleges and universities are not always known for being bold or fast-acting, we know they can be. During the pandemic, for example, they quickly mobilized to meet student needs and moved to test-optional policies that have resulted in a positive shift that could persist beyond COVID-19. Racial inequity is a crisis of a different kind, one that retrenches itself in slow motion over decades, but we can seize on this moment to hold them responsible for making changes that are long overdue.
The good news is that legislators, alumni, boards of directors, students, and the public at large have the power to hold higher education accountable. Colleges and universities, particularly public ones, receive taxpayer dollars, directly through appropriations and/or indirectly through state aid grants, and so they should be able to justify to all Illinoisans how they solicit and spend these resources to equitably recruit, enroll, and support students of color. Institutions and state officials have already condemned this decision and reiterated their commitments, and while that’s welcome, what is more important is their answer to the question of how they will equitably enroll students of color moving forward.
Legislators, board members, students, alumni, and the public can take action now by letting colleges know that they need to be accountable for changing their practices in the wake of this ruling. There are steps they can take to ensure this: despite the inequitable status quo, the state can appropriate more funding to regional universities and community colleges that are already serving more students of color. It can also demand that better-funded universities improve their enrollment diversity, and that community colleges fix developmental education practices that disproportionately prevent students of color from taking college-level courses. Finally, selective private colleges have billions of dollars of endowments they can choose to spend on student aid; if they don’t change their inequitable practices, their alumni are not beholden to their alma maters, and can donate elsewhere.
Colleges may be limited in explicitly using race in admissions, but there are bold steps outlined here that they can take immediately. Unfortunate and under-discussed financial realities have allowed selective universities to enroll wealthy students, legacy students, and athletes, while under-enrolling students of color. The best way of holding these institutions accountable is by turning this on its head, demanding that selective institutions improve their enrollment practices, and better supporting institutions that equitably enroll students of color.
Footnotes
1 Chief Justice Roberts delivered the Court’s opinion, which Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett joined. Justices Jackson and Sotomayor filed dissenting opinions, which Justice Kagan joined. The conservative majority also blocked the Biden administration’s $400 billion debt relief plan, denying 1.5 million Illinoisans up to $23.5 billion in relief.
2 The language of “race neutrality” itself masks how racial inequality shapes structures, systems, and institutions.
3 Policies may be directly related to admissions, like reliance on high stakes standardized tests that have been demonstrated to privilege White, wealthy students, or they may overlap with other policy areas, like labor and housing, where people of color are paid less and have dramatically different opportunities to accrue wealth and property: the average White household has more than $100,000 in wealth, compared to almost no wealth held by the average Latinx and Black households.
4 According to the judge who narrowly upheld this policy in 2003, affirmative action should have eliminated racial gaps in higher education by 2028; this seems highly unlikely now.
5 Although students of color will be broadly impacted by the Supreme Court’s ruling, the report describes how affirmative action and other policy are connected to struc- turally embedded legacies and logics of slavery, Jim Crow, and anti-Black racism impact Black people specifically.
6 The rhetoric from the Kennedy and Johnson administrations around Equal Employment Opportunity and later, affirmative action more broadly, largely focused on hiring based on “ability and qualifications” rather than “race and religion.”
7 California (1996), Washington (1998, rescinded in 2022), Florida (1999), Michigan (2006), Nebraska (2008), Arizona (2010), New Hampshire (2012), Oklahoma (2012), and Idaho (2020). Hopewood v. Texas established that University of Texas schools could not consider race as an admissions factor, but was overturned by Grutter in 2003.
8 This argument capitalizes on the real exclusion and racism Asian students face in higher education, but is not based in evidence that race-conscious policy harms Asian students (on the contrary, research shows that “race-neutral” admissions policy would increase enrollment barriers for Asian students), nor is it representative of Asian Americans’ opinions on affirmative action.
9 One study found that affirmative action bans impacted students not only in those states but also students in neighboring states with limited access to selective institutions in their home state.
10 In California, Prop. 209 had a cascading effect, whereby underrepresented minority freshmen were shifted into institutions with lower average graduation rates and wage outcomes. The shift had long term impacts on student success, resulting in lower degree attainment and lower annual wages for Black and Latinx students after Prop. 209.
11 Though nominally race-neutral, these policies use proxies that disadvantage students of color and often have racialized outcomes.
12 Repressive legalism is a lens to examine how legal pressures extend beyond the letter of the law to constrain institutional actors’ autonomy to promote racially inclusive policies or practices.
13 Blume & Long (2014) p. 232.
14 One study found that the University of California actually reduced the weight it places on SAT scores and increased the weight placed on GPA and family characteristics in response to Prop. 209, but these changes were not sufficient to stave off enrollment declines among students of color.
15 Roberts later cautions that “universities may not simply establish through application essays or other means the regime we hold unlawful today” (p. 47).
16 For example, graduates from colleges that at least reflect the state’s Black population average less than $40,000 per year in earnings ten years after graduating, compared to $50,000 for graduates from institutions with disproportionately few Black students.
17 The University of Chicago and Northwestern University are in the top 15 of lowest acceptance rates, and The University of Illinois at Urbana-Champaign and the University of Illinois at Chicago are among the most selective public universities.
18 UIC, UIUC, Northwestern, and University of Chicago each have statements committing to racially diverse and inclusive campuses.
19 University of California and University of Michigan both submitted issue briefs stating the limitations and impact of “race-blind” approaches.
20 Together these universities have more than $21.5 Billion in endowment market value.
21 Data sourced from the Commission on Equitable Public University Funding
22 Test-blind refers to admissions policies that do not consider test scores in any part of the application process. Test-optional means that students can choose whether or not to submit test scores. Test-optional policies are less effective than test-blind policies because students who do submit scores are often provided with a boost in admissions.
23 One study found that institutions have become increasingly likely to award financial aid packages based on SAT scores rather than need.
24 Even with these material incentives, one study found “no statistically significant preference that legacy preferences impact total alumni giving.”