What comes after affirmative action?

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The Supreme Court ruled Thursday that colleges can’t consider race in their admissions process. 

College leaders have been girding themselves for the decision since October when the justices heard oral arguments in cases filed by Students for Fair Admissions challenging the use of race-conscious admissions policies at the University of North Carolina and Harvard University. 

The court’s six-justice conservative majority said the schools’ admissions policies violated the 14th Amendment’s equal protection clause. In the UNC case, the court’s three liberal justices dissented. In the Harvard case, Justices Elena Kagan and Sonia Sotomayor dissented, while Justice Ketanji Brown Jackson, who in the past served on Harvard’s Board of Overseers, recused herself from the case. 

As affirmative action has wound its way through the court system several times over the past few decades, colleges that use race-conscious admissions policies have defended them in part by arguing that achieving racial diversity is an important educational objective. Now, those colleges will search for a new way to hold to that objective and build diverse classes without running afoul of the court’s decision. 

But on balance, there will be a limit to what they can do and the proportion of Black and Hispanic students will likely diminish at the nation’s more selective colleges, experts who follow the situation say. Chief Justice John Roberts wrote in the opinion that because the admissions programs at Harvard and UNC “unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful endpoints,” among other reasons, the policies “cannot be reconciled with the guarantees of the Equal Protection Clause.” 

Roberts added: “At the same time, nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university.”  



The court’s decision means that schools will be looking to so-called race-neutral tactics that are within the bounds of the law to help schools bring in certain types of underrepresented students. But it’s unlikely colleges will be able to use them to mirror current levels of racial diversity, experts say. The experiences of public college systems in states where affirmative action is already banned also illustrate the challenge ahead for colleges. 

“The issue becomes to what extent can you use class to get race and the answer is very little,” said Anthony Carnevale, the director of Georgetown University’s Center on Education and the Workforce. “What we find when we run simulations on the use of class in terms of using class variables to get race-based admission…is no it doesn’t work. You can’t get anywhere near the current level of diversity.” 

Some scholars argue that part of the reason why affirmative action has been under attack over the past several years is that it works as a strategy to increase the share of underrepresented minority students in colleges, said Dominique Baker, an associate professor of education policy at Southern Methodist University. Her research found that as the share of white students at a state’s flagship public college decreased, the likelihood of the state adopting a ban on affirmative action increased. 

“If the thing you care about is race then the thing that works best is race,” she said. “Everything else is a proxy. Every step removed that you do adds in an error.”  

Enrollment consultants and higher education trade groups have been advising schools on the types of strategies they could use to maintain diverse classes in the absence of race-conscious admissions policies. Kathy Dawley, a managing director at EAB, an enrollment management firm, said schools might consider recruiting and enrolling more first-generation and low-income students.   

“When you put low-income and first-generation candidates together that is covering some of the territory,” that race-conscious admissions policies aimed to address, she said. 

To get access to these students, colleges can buy name lists associated with first-generation and low-income students and they should reach out to them early, EAB staffers advised colleges in a recent webinar. “The basic message here is clear, recruitment marketing works especially well with underrepresented students,” one of the staffers said in the webinar. 

Kim Cook, the chief executive officer of the National College Attainment Network, which works with colleges, community-based organizations, public school systems, and others to increase the number of low-income and other underrepresented students in colleges, said her organization is encouraging colleges to look beyond the high schools and communities from which they typically recruit. 

Colleges spend significant sums traveling to high schools and college fairs and those events are a large source of applicants and ultimately enrollees, according to research published in 2021 by the Institute for Higher Education Policy. But often those efforts are focused more on wealthy and white students. A 2019 study of 15 public research universities found that the schools made more visits out-of-state than in-state and that these out-of-state visits tended to focus on primarily white and affluent communities. 

Staffers in the EAB webinar also suggested colleges create meaningful relationships with community-based organizations that can vouch for the school with the students they work with. Another “proactive strategy” colleges may consider maintaining diverse classes is recruiting more community college students, said Mamie Voight, the president, and CEO of IHEP. Low-income, Black, and Latino students are overrepresented at community colleges, but less than 10% of students at selective four-year colleges transfer in, according to the IHEP report released in 2021. 

The California Experience

Still, the experience of the University of California in the wake of voters’ decision to ban affirmative action in the state in 1996, illustrates the limits of these kinds of policies to boost racial diversity. 

The University of California system has spent more than $500 million since 1998, shortly after affirmative action was banned in the state, on just one of its race-neutral efforts, programs to target students in disadvantaged schools for increased opportunities for college preparation and college planning, according to a friend of the court brief filed by the University of California in a previous affirmative action case. In addition, specific UC campuses have their own efforts that work to increase the number of students transferring from community colleges. 

The programs have helped to drive up enrollment of low-income students and students who are the first in their families to graduate from college, lawyers for the UC system wrote. But because low-income and first-generation students come from all racial backgrounds, the efforts haven’t been as effective at changing the racial and ethnic makeup of the schools as race-conscious policies. 

In addition to adopting new or expanding race-neutral recruitment, admissions, and enrollment tactics, colleges could consider ending practices that get in the way of efforts to build diverse classes, in the wake of the decision, Voight said. Those include ending admissions preferences for legacy students whose relatives attend a college, binding early decision and early action applications, and providing a leg up to students who show “demonstrated interest” in a school. 

Despite many colleges’ stated commitments to equity, other pressures have made it difficult for schools to end these practices, Voight said. For example, demonstrated interest policies, which provide an admissions advantage to students who visit the campus, click on an email link, call an admissions officer or show interest in a school in another way, help schools predict which students might ultimately enroll. 

“The reason institutions prioritize someone who has demonstrated interest is that it increases the yield,” Voight said, referring to the share of accepted students who decide to enroll at a college. Yield can be a factor in college rankings, Voight said, which may be why some schools feel pressure to give a leg up to students who show they’re interested in enrolling.

“The really clear downside here is that some students are far more likely to be able to demonstrate an interest in an institution,” she said. For example, students whose families can afford to visit an institution and who have access to the kind of college counseling that would let them know that demonstrating interest in a school is important, are more likely to take these steps, she said. 

Even if schools get rid of some of these practices in the wake of the decision, it’s not clear they’ll be enough to achieve the kind of racial diversity available through race-conscious admissions policies. During oral arguments in the Harvard case, Solicitor General Elizabeth Prelogar noted that a lower court considered whether banning legacy admissions and preferences for other wealthy or well-connected applicants would be enough for the school’s educational goals of racial diversity and still upheld Harvard’s race-conscious admissions policies. 

“If it could be shown that eliminating those kinds of preferences would actually enable a university to meet its — its diversity goals and to be able to offer the educational benefits of a diverse student body, then, yes, we think absolutely that can function as a race-neutral alternative,” she said. “And it’s incumbent on universities to consider those kinds of options as they chart a path forward.” 

Research on Harvard admissions data that became available as part of the case, indicates that getting rid of preferences for legacies and athletes would decrease the number of white students admitted to the school with little change or increase in the number of Black, Hispanic and Asian American students admitted. Still, that increase in diversity isn’t enough to offset the decreases in diversity that would come from a ban on affirmative action. 

Some states may also change their approach to admissions to public colleges. In the wake of an affirmative action ban in Texas, the state tried another strategy — guaranteeing admission to public universities to the top 10% of each high school’s graduating class. So far, the policy hasn’t dramatically altered which schools consistently send students to the state’s two flagship colleges, the University of Texas at Austin and Texas A&M University, according to a study from researchers at the University of North Carolina Chapel Hill and Texas A&M. 

Emphasis on essays

Michele Sandin, the interim associate executive director of the American Association of College Registrars and Admissions Officers, said her association has been working with colleges and universities on applying non-cognitive qualities that are race-neutral when evaluating candidates. These include leadership, students having a realistic understanding of themselves or having long-term goals, and dealing with adversity, “which is the discrimination question,” she said. 

At oral arguments for the two cases in October, the justices questioned the lawyers challenging affirmative action on whether they believed admissions officers taking into consideration stories from essays that referenced race in evaluating candidates violated the law. Generally, the attorneys said admissions officers could use information about overcoming discrimination gleaned from admissions essays, as long as their decisions aren’t focused on race specifically. 

Still, in the majority opinion, Chief Justice Roberts cautioned colleges against using “application essays or other means the regime we would hold unlawful today.” Still, the opinion left room for a college to consider a student’s discussion of their race within certain parameters. 

“A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination,” he wrote. “Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university.”

A possible increased emphasis on essays worries Aya M. Waller-Bey, a doctoral candidate at the University of Michigan. Waller-Bey studies how Black undergraduate students make sense of and respond to the expectation to disclose trauma in college essays. With a ban on asking about race explicitly, “how might students then disclose their stories and talk about who they are and how might universities solicit certain narratives?” she asked. 

“The essay then becomes even more important, even more consequential,” she said.  

That pressure to disclose an uncomfortable experience that signals your race could retraumatize students at the worst, or at the very minimum put them at risk of sharing intimate information with little sense of who is reading it on the other side or how it might be used. 

“Students feel like they can not speak authentically about their lived experiences,” Waller-Bey said of some of the students she’s interviewed as part of her research. “There’s a racist expectation that links their lived experience to trauma.” 

Even as colleges look to implement so-called race-neutral tactics to build diverse incoming classes, there’s still a risk they could face litigation surrounding some of the strategies. For example, there’s a concern that using metrics — such as zip codes or high school demographics to tailor recruiting efforts —  that are technically race-neutral but are a proxy for race, could run afoul of the law. 

If schools “use class and you get to race, the difficulty is going to be you can still be sued because you got too much race,” Georgetown’s Carnevale said. He cited ongoing litigation surrounding a Virginia magnet high school’s plans to diversify its enrollment by giving more weight to low-income students and English learners. 

“The opposition to affirmative action is geared up for this, they see it coming,” he said. 

In the short term following the decision, colleges will be looking to tweak their efforts to build diverse classes to ensure they are race-neutral by using tactics like expanding recruiting, said David Hawkins, the chief education and policy officer at the National Association for College Admission Counseling. But the decision could help accelerate a trend already underway at some schools to completely revamp their approach to admissions, he said. 

This more long-term approach includes at some schools embracing tactics like direct admissions, where a college contacts a student and tells them they’ve been accepted without the student having to apply, he said. In addition, some schools are rethinking their admissions requirements, by, for example, putting less emphasis on calculus. 

“It’s a received wisdom in college admissions that calculus is the coin of the realm,” Hawkins said. It’s “seen as a bit of a shortcut to determine whether a student has really achieved that high level of mastery,” even though proficiency in data science, statistics, and other math topics can also be a sign of math literacy. “The problem is research shows only about half of public high schools across the country offer a calculus course.” 

Though the decision will certainly usher in changes to college admissions, stakeholders are encouraging universities not to shift their approach too radically as they react to the court’s ruling. 

“There’s a risk that institutions could overinterpret in that way too and scale back a variety of their practices that they have put in place or that they’re considering putting in place to strengthen the socioeconomic diversity,” Voight said. 

To be sure, advocates of racial diversity in higher education, including many colleges themselves, are worried that the problem will only get worse. Even prior to the Supreme Court’s decision, higher education stakeholders and critics of the system have said selective colleges were not doing enough to serve students of color, low-income students, and other students from underrepresented backgrounds.

“The bottom line is the education system is the primary source of institutional racism in America now, in terms of reproducing privilege,” said Georgetown’s Carnevale. “Affirmative action was a Band-Aid on that and now we ripped off the Band-Aid.”  

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