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Affirmative Action in Higher Education

October 20, 2022

In this Q&A, Cara McClellan GEd’12 of the Law School’s Advocacy for Racial and Civil (ARC) Justice Clinic explains what’s at stake in the Supreme Court case over Harvard’s affirmative action policy.

The Supreme Court will soon hear oral arguments in Students for Fair Admissions (SFFA) v. President & Fellows of Harvard College, a case that challenges the use of race as a factor in admissions in institutions of higher education.

Cara McClellan GEd’12, Founding Director of the Advocacy for Racial and Civil (ARC) Justice Clinic and Practice Associate Professor of Law at the University of Pennsylvania Carey Law School, contributed to the NAACP Legal Defense Fund’s amicus curiae brief filed in the case. 

Prior to joining Penn Carey Law, McClellan represented students and families in school desegregation cases and students and alumni in the SFFA v. Harvard litigation, defending Harvard’s affirmative action admissions.

Here, with research assistant Karla Talley L’23, McClellan provides a Q&A on the what’s at stake in the controversial case. The following is part of the transcript, edited for length and clarity, from McClellan’s full interview with Talley, the video of which is included below.

Q: Can you explain what the claims are in Students for Fair Admissions Inc. v. President & Fellows of Harvard College, which is slated to be argued before the Supreme Court this month?

This case really has two different sets of claims. The one that has gotten a lot of attention is the intentional discrimination claim, in which the plaintiffs have alleged that Asian American applicants are discriminated against during the admissions process. The second claim is a claim arguing that race-conscious admissions is unconstitutional, which is a direct attack on over 40 years of precedent in which the Supreme Court has said repeatedly that race can be considered as one of many factors in admissions, so long as the consideration of race is narrowly tailored to serve the compelling interest of pursuing the educational benefits that flow from diversity. In addition to directly challenging existing precedent on affirmative action, the plaintiffs also have a series of claims where they are alleging that Harvard does not comply with precedent as matter of fact. These claims essentially say that Harvard is not pursuing the educational benefits of diversity in a narrowly tailored way.

It’s important to separate their claims challenging race-conscious admissions from their claims arguing that Harvard discriminates against Asian American applicants because they are separate issues. Part of SFFA’s strategy has been to conflate the issues and create a narrative that considering race in any way must cause discrimination. But in fact, when you look at the evidence and the expert reports in the case, it’s not true that considering race as a plus factor for Black and Latino students leads to less Asian American students getting admitted to college. Even if you removed every Black, Latino, and Native students from the applicant pool entirely, the rate of admissions for Asian American students would not increase significantly because the vast majority of students who apply to Harvard are white.

It’s also worth noting that, even though SFFA claims it is concerned about discrimination against Asian Americans, it does not ask for a remedy to address this alleged discrimination. Instead, SFFA seeks a “permanent injunction requiring Harvard to conduct all admissions in a manner that does not permit those engaged in the decision process to be aware of or learn the race or ethnicity of any applicant for admission.”

Q: Under current law, how can colleges and universities permissibly consider race in admissions?

The Supreme Court has said repeatedly that race can be considered as one of many factors in admissions, so long as the consideration of race is narrowly tailored to serve the compelling interest of pursuing the educational benefits that flow from diversity. This means universities can target a general goal of having what’s referred to as a critical mass of underrepresented minority students to combat stereotyping and tokenism.

Most recently in Fisher v. the University of Texas, the Court has made clear the framework for complying with the narrow tailoring requirement. Generally, the Court has told us that the consideration of race can’t be through a quota. You can’t have a specific number you’re targeting, but there can be a more flexible consideration of race through a holistic admissions process. The consideration of race can’t unduly burden the non-minority applicants and it can’t insulate under-represented minority applications from competition with other applicants.

A university also must show that there’s no workable race neutral alternative that could achieve the educational benefits of diversity. For example, could alternatives like scholarships, targeted recruitment strategies, or otherwise considering socioeconomic status still achieve the educational benefits of diversity? Or is it necessary to consider race as one of the many factors to obtain the educational benefits of diversity?

Research generally has shown that nothing is as effective at creating racial diversity as explicitly considering race. In other words, race neutral alternatives are not as effective in action. And that’s something that was demonstrated through evidence in the Harvard case, as well.

Q: How did this case come about and who is behind the suit?

Behind this particular lawsuit is Ed Blum, a former stockbroker who has become the architect behind multiple attempts to challenge race-consciousness in different areas of the law. He’s perhaps most well-known for being one of the architects behind the Shelby County decision which gutted Section 5 of the Voting Rights Act. He has generally pursued an agenda of making sure that policies that are designed to ameliorate racial inequality limited such that race is no longer consciously considered. After Shelby County, he turned his attention to affirmative action as another context where race-conscious remedies to pursue diversity in the higher education context. He teamed up with Abigail Fisher, who many may remember from Fisher v. the University of Texas. She was the Plaintiff in that case. She is a white woman who argued that she did not gain admissions to the University of Texas because of her race – because of race discrimination. She, along with Ed Blum and her father, founded an organization called Students for Fair Admissions. This organization brought lawsuits against Harvard, UNC, University of Texas, and Yale University.

In each of these cases, they are directly challenging 40 years of settled law holding that colleges and universities may consider race as one of the many factors in admissions to assemble a diverse student body and to yield the educational benefits of diversity. It’s pretty unusual for the Supreme Court to grant certiorari on a question that has been decided recently and has been decided repeatedly as it has done it by granting the Harvard and University of North Carolina cases.

Q: What happens if affirmative action ends?

During the trial, there was testimony and evidence that was presented on the issues that made clear that without race-conscious admissions, there would be a reduction in Black and Latino students on campus by about 50%. That’s significant. There was a lot of testimony about how that would impact students of all backgrounds on campus in terms of their ability to pursue the educational benefits of diversity.

We also know from the real world, from “experiments” about this from states where race-conscious admissions have ended. For example, in Michigan and California, we know that Black student enrollment has decreased by more than 25% and Latinx student enrollment has decreased by nearly 20%, according to multiple studies. Ending race-conscious admissions would thus create a significant barrier to ensuring that students of all backgrounds have access to higher education and to the career pipelines that universities create. This is particularly true because segregation and racial inequity remains pervasive in K-12 education, creating an unequal playing field when students apply to college.

Watch McClellan’s full interview with Talley:

Learn more about the Law School’s ARC Justice Clinic.