Ian V. Rowe
Founder & CEO, Vertex Partnership Academies
Senior Visiting Fellow, The Woodson Center
Senior Fellow, The American Enterprise Institute
As our country is engaged in a national reckoning that has increased focus on the role that race plays in public education, it is ironic that there is a real possibility that race may soon be eliminated as a factor in school admissions, at least in higher education.
The following chart has been making its way across the Internet, highlighting differences in admissions rates at Harvard University:
This data was compiled by Students for Fair Admissions, a nonprofit membership group of more than 20,000 students, parents, and others who believe that racial classifications and preferences in college admissions are unfair, unnecessary, and unconstitutional. Their mission is to “support and participate in litigation that will restore the original principles of our nation’s civil rights movement.” According to SFFA, “a student’s race and ethnicity should not be factors that either harm or help that student to gain admission to a competitive university.”
Based on the racial disparities in admissions rates by race, Students for Fair Admissions is pursuing a case against Harvard University alleging racial discrimination against Asian applicants in undergraduate admissions.
It is important to note that race-based affirmative action in higher education was first affirmed in 1978 with the Regents of the University of California v. Bakke, 438 U.S. 265 decision. That decision upheld a university’s right to allow race to be one of several factors in university admissions, but found the use of specific racial quotas unconstitutional.
Twenty-five years later, in 2003, the Supreme Court upheld the University of Michigan’s law school decision to deny admission to Barbara Grutter, a white Michigan student, who had applied with academic credentials sufficiently worthy to earn her admission. However, Ms. Grutter was denied entry, partially due to the Law School’s open practice to provide admissions preference to certain minority groups to ensure a certain racial makeup of students could be achieved.
In a 5-4 opinion, the Court held that the Equal Protection Clause in the Constitution did “not prohibit the law school’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.” Even though she had ruled in the affirmative, Justice Sandra O’Connor noted that it had been 25 years since the precedent-setting Bakke case, and that 25 years hence, race-based affirmative action should no longer be needed.
In her majority opinion, O’Connor wrote that “race-conscious admissions policies must be limited in time,” adding that the “Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
It is noteworthy that O’Connor’s prediction would set 2028 as the year in which race-based affirmative action would come to an end. But that timeline might be accelerated. Students for Fair Admissions has filed a petition for certiorari to the U.S. Supreme Court to end race-based admissions at Harvard and all colleges and universities. Students for Fair Admissions has a very strong case that Harvard is violating Title VI of the Civil Rights Act of 1964 which prohibits discrimination on the basis of race, color or national origin by any program or activity receiving federal funds. Fundamentally, the charge is that Harvard is preferring African-American and Hispanic students and in effect penalizing Asian-American and white student applicants through its weighting of race in its selection process.
Moreover, according to SFFA, Harvard admits more than twice as many non-economically disadvantaged African-American applicants than economically disadvantaged African-American applicants.
In his book The Remedy: Class, Race and Affirmative Action, Richard Kahlenberg argues that it is time to replace race with class preferences and highlights that “while it is true that a disproportionate number of ethnic and racial minorities are also members of the lowest socioeconomic class, the main barriers they face are due to poverty rather than race.” In his analysis, Kahlenberg “examines how the rationale for affirmative action has moved inexorably away from its original commitment to remedy past discrimination and instead has become a means to achieve racial diversity, even if that means giving preference to upper-middle-class blacks over poor whites.”
According to the Northwestern Law Review, the SFFA case “is one of the most notable recent equal protection challenges to be advanced almost exclusively on the basis of statistical evidence…and could well end [race-based] affirmative action in higher education and beyond if it winds up at the Supreme Court.”
So while we are all temporarily mesmerized by whether critical race theory exists in K-12 education, the US Supreme Court may soon make it so racial preferences in college admissions – pitting one race against another – no longer exists. And if all of this is replaced by class-based preferences, then that would mean greater opportunities for low-income kids of all races to have more access to higher education, and thus greater access to the American Dream.