Junior Kennedy Boston knew her race was a big part of her identity when applying to colleges. At Elon University and other predominantly white institutions, Boston was acutely aware of how race would appear on its applications.
“I knew they would look at my application and say, ‘Oh, she’s black,'” Boston said. “It would be a standout feature of my own app. And inherently that would change views, or maybe not, but it would at least play some level of consideration into how I was perceived in the admissions process.
Race-conscious admissions have long been used in higher education as a form of affirmative action – policies or practices used to include minority groups in areas where they have historically been underrepresented. But it is not without controversy. Race-conscious admissions have been challenged many times over the years, going all the way to the Supreme Court on several occasions. Today, Students for Fair Admissions, a conservative advocacy group, is taking two universities to the nation’s highest court in a bid to end race-conscious admissions.
Law professor Elon and alumnus Tiffany Atkins, who teaches race law to second- and third-year law students, said past challenges — such as University of California Regents v. Bakke, Grutter v. Bollinger and Fisher v. University of Texas – resulted in Supreme Court precedents that tell higher education institutions in what capacity they can consider race in admissions.
“We know you can’t just use racing to fill a quota. You can’t say, ‘We need 20 black students, go get me 20,’ Atkins said. “The court said it’s ineffective, it’s unconstitutional. But using race as a factor in admissions and schools, based on their history – their own history with racial exclusion – can change that to some degree.
The SFFA filed two similar lawsuits against Harvard College and the University of North Carolina Chapel Hill in 2014. Both cases went through the appeals system until 2021, when the Supreme Court agreed to hear them during their next mandate.
Part of the SFFA’s argument rests on the precedent of Grutter v. Bollinger of 2003. In Grutter, the court ruled that the University of Michigan Law School could use race as a soft positive factor in its admissions process – setting the precedent that race-conscious admissions are constitutional when race is only one factor in a process that gives individualized consideration to each candidate.
The two current cases argue that the Supreme Court should overrule Grutter and rule that higher education institutions cannot consider an applicant’s race at all in their admissions processes.
Grutter established a “race plus” admissions model; a university may say that race is a soft positive, or a “plus”, on an application, but race cannot be the reason the applicant is admitted.
Atkins said she believes that when schools recognize a lack of representation in themselves, the “race plus” model is the best way to do race-conscious admissions.
“If a school knows that they have a history of excluding black students, other students of color, then they prioritize inclusion of those groups, I think that’s fair,” Atkins said. . “And the Supreme Court tells us you can do it.”
But the SFFA argues that even a ‘race plus’ model should not be used.
The group’s case against Harvard College centers on a version of a “plus” model used by Harvard admissions. When reviewing applications, Harvard gave positive or negative weight to subjective personality factors. In reviewing individual applications, the SFFA said Harvard admissions officers gave Asian American applicants negative personality factors that offset their academic performance. The SFFA alleged that this allowed them to impose a soft racial quota to limit the number of Asian Americans they admitted. From there, the SFFA argues that a racially blind admissions process would be fairer.
At Elon, race is one of many factors considered in a candidate’s profile, according to Greg Zaiser, vice president of enrollments, and Kimberly Romero, associate director of admissions for diversity and access. They said Elon’s admissions office was intentional in its diversity recruitment efforts.
“Consistent with our academic values and the Boldly Elon strategic plan, we seek to build a class of students from diverse backgrounds, perspectives, and regions of the world,” Zaiser and Romero wrote to Elon News Network. “The most important factor in admissions is a demonstrated ability to do well in the Elon class, as evidenced by high school record.”
Boston said she doesn’t know how much race is considered because Elon’s student population of color is so small.
“There are already so few of us here that I’m like, ‘Does that even play a role? ‘” Boston said.
For Boston, the “race plus” system is flawed. The system subjectively attaches a numerical value to an identity, she says.
“I think putting a value on the race and its experiences just won’t work,” Boston said. “Adding value to how much a ‘plus’ it is, I think, doesn’t work because it negates so many experiences based on people’s individualized experiences and races.”
What makes one of these cases seemingly unique from previous challenges is that it is the first time the court has considered challenging a private institution. The court generally does not hear civil rights cases involving private entities, which raises two issues. First, whether the Supreme Court has jurisdiction over Harvard, and second, whether the precedent will apply to all private colleges and universities, like Elon.
The answers go together. The second part of the SFFA’s argument is that UNC Chapel Hill and Harvard violate Title VI of the Civil Rights Act of 1964, which prohibits discrimination in educational institutions. According to Atkins, private institutions that receive federal funding are subject to the law. Since Harvard receives federal funding, the Supreme Court has jurisdiction over the school. This means that he can not only be sued, but is also bound by court precedents.
Elon, who receives public funding, is also held to the same standard.
“What the Civil Rights Act of 1964 says is that we no longer leave it up to states to decide what rules they follow and which they don’t, how they treat people based on their race, their gender and other identifying demographics or characteristics,” Atkins said.
If the Supreme Court overturns Grutter, it will set a new precedent that race cannot be considered at all in higher education admissions. But Zaiser and Romero don’t believe any decision in the case will have as big of an impact on Elon as on more competitive private institutions like Harvard.
“Much of the attention at Harvard and other schools is a function of their extremely high rate of selectivity. In a sense, selectivity is juxtaposed with inclusion,” Zaiser and Romero wrote. students who will succeed at Elon and our acceptance rate reflects that.”
The last time the Supreme Court heard a race-conscious admissions case was six years ago, in the 2016 case Fisher v. University of Texas. But Atkins said the court did not decide to hear those challenges so soon after because they presented a unique or different issue from previous cases. Instead, it has to do with recent changes in the ideological makeup of the judges themselves. Sitting judges today may make a different decision than courts of the past.
“The policy, as we would say here, is that we now have this super conservative court,” Atkins said. “The balance of power has changed.”
The SFFA took the opportunity to appeal to the ideals of a court that now represents its own more broadly.
Atkins recalled a 2003 statement by Judge Sandra Day O’Connor after Grutter, where she said she believed that in 25 years, higher education institutions would no longer need to use affirmative action.
“Twenty-five years from there will be 2028. So we come to that date when Judge O’Connor said we shouldn’t need to use it anymore,” Atkins said. “I think she was wrong to put a date on it, because you can’t eradicate centuries and centuries of explicit discrimination against black people and other people of color, with just 25 years of conscious remedy for the race.”
Regardless of what happens to race-conscious admissions in the Supreme Court’s next term, Boston said it believes the system needs a nationwide update.
“I really believe the intentions were good. And what he was doing initially was positive,” Boston said. “But it turned into something a little less positive. … So I think that’s another thing that we tried that didn’t work as expected, so we’re reworking it or we’re off. let’s get rid of as a whole.