Affirmative action is not what’s at stake in UNC Chapel Hill and Harvard lawsuits

Recent filings in two separate federal lawsuits against race-conscious admissions policies at the University of North Carolina, at Chapel Hill and Harvard initiated by long-term opponent of affirmative action, Edward Blum, continue to bring attention to the issue of race-based affirmative action.

As a policy, “affirmative action” triggers strong feelings and divisions for Americans over race. On one side of the debate are those, like Blum, who argue that any consideration of race in admissions is tantamount to racial discrimination. On the other side, are those who believe that it is necessary to take race into consideration in order to overcome racial discrimination and address racial inequities.

As a scholar of race and law, lessons from my research place me in the latter camp. As the Chapel Hill and Harvard cases make their way through the courts, likely ending before the U.S. Supreme Court in the coming years, it’s worth noting that the fight in these cases is not about affirmative action. Rather, the fight is over preserving a small modicum of dignity for students of color in the much larger battle over racial justice and equity and about preventing the dangers of a race-blind approach in educational policy-making.{mosads}

Affirmative action started as a governmentally-enforced, and then voluntarily-adopted, policy in the 1960s that intentionally and affirmatively provided an advantage via quotas or preferences to individuals from historically marginalized communities with the effect of helping level an uneven playing field. That approach was struck down as unconstitutional in the 1978 Supreme Court case Regents of the University of California v. Bakke.

While Bakke terminated affirmative action in its strongest form, it allowed for a moderate consideration of race as a factor in admissions. As challenges to this limited consideration of race continued, Justice Anthony Kennedy provided the deciding vote in 2016 for a pragmatic approach that endorsed the constitutionality of race-conscious admissions in the Fisher v. University of Texas case. But, like Bakke, that decision provided a very limited consideration of race, one restricted to the purpose of obtaining the educational benefits of diversity and not to addressing the effects of past or ongoing racial discrimination. The decision also said that race-conscious admissions are only legal when public institutions can demonstrate that “race-neutral” approaches to admissions are not as effective.

After these court decisions, what remains is not affirmative action, but a policy that merely ensures that the experiences of students of color are considered alongside those of white applicants, not one that involves racial preferences or, unfortunately, comes anywhere close to addressing centuries of past oppression and ongoing racial discrimination.

These race-conscious admissions processes consider all aspects of an individual’s identity, including race or ethnic background, the factors that shape who they are, and the unique perspectives they would bring to a campus. Considering how race is used — or not used, really — in this process, it is hard to see what is “preferential” about it. Indeed, one might say it is basic common sense that an admissions process would consider all aspects that make up an applicant. That is why Harvard calls its process “whole person” review.

If “whole person” review was overturned, then a “race-blind” approach under the current system would actually work to discriminate against students of color.{mossecondads}

Research has shown that when university administrators are blind to race in their admissions processes, they inevitably deny the challenges students from marginalized communities face, in turn privileging the experiences of many white applicants. Legal scholar Elise Boddie has written persuasively about how a color-blind approach to admissions stigmatizes and demeans the dignity of students of color because it denies them agency over how they present themselves and renders invisible an important aspect of their personal experience.

Race-blind admissions would also greatly exacerbate racial inequities.

In my work as a scholar examining the implications of banning race-conscious approaches in admissions for student access and success, I have found that a race-blind admissions approach leads to substantial declines in the representation of students of color, not only at selective colleges and universities, but across graduate fields of study, and in schools of medicine.

Because elite and graduate institutions remain an important part of the trajectory to positions of power and influence in the United States, these consequences are devastating. And the consequences are most acute in health care, where racial and ethnic health disparities remain and a racially diverse medical workforce improves quality of care and health outcomes for all.

While the UNC and Harvard lawsuits are not about affirmative action per se, should their outcome force universities to adopt a race-blind approach it will test their willingness to transform admissions policies and related assessments of merit in order to continue to attract and retain students of color.

Among the policies they should consider is undue reliance on standardized test scores, which research has shown are not a measure of innate intelligence, but rather financial and family resources. Another is legacy admissions, which disproportionately benefit well-off white students. A true “race-neutral” approach would remove these preferences for white students in college admissions and re-imagine how merit is assessed in college admissions.

Liliana M. Garces is an associate professor of education at the University of Texas at Austin, affiliate faculty at the University of Texas School of Law, and a Public Voices fellow. Follow her on Twitter @garceslm