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June 29, 2023

Ask the expert: Supreme Court affirmative action decision

Today the U.S. Supreme Court decided that colleges and universities must stop considering race as part of their admissions decisions, a practice commonly known as affirmative action. Kristine Bowman, jointly appointed as a professor of law and professor of education policy at Michigan State University, answers questions about the case and decision.

Kristine Bowman. Courtesy photo.

What’s your reaction to the decision?

This decision effectively bans race-conscious admissions practices in higher education and overturns the court’s Bakke decision from 1978. It will not change much for public universities in the several states that already ban race-conscious admissions, but it will have a significant impact on student diversity in elite public institutions in other states and in private institutions across the country.

What is affirmative action?

College applications are evaluated on many factors. Affirmative action involves favoring applicants from underrepresented racial or ethnic groups as part of a broader consideration of each applicant’s experiences. Having a diverse student body has educational and social benefits, and the most accurate way to admit a racially and ethnically diverse student body is to consider the race or ethnicity of individual applicants. However, an individual applicant’s race or ethnicity must be considered alongside other factors such as high school grades, leadership experiences or whether the applicant has a relative who attended the institution.   

How did it begin?

Affirmative action began in earnest in the 1960s, when presidential executive orders prohibited federal contractors from engaging in employment discrimination on the basis of race, color, religion, national origin or sex. These executive orders didn’t just prohibit discrimination though. They also required government contractors to take additional steps — affirmative action — to expand employment opportunities for members of the protected groups. This was to ensure that these opportunities became more broadly available not just in theory, but also in reality. 

Is this the first time the U.S. Supreme Court has heard cases on affirmative action in higher education?

The U.S. Supreme Court has heard several cases about affirmative action in higher education. The first one was Regents of the University of California v. Bakke, decided in 1978, in which the court held that although an institution could not use racial quotas in admissions, it could consider race as one of many factors in admissions decisions. The court has upheld that decision throughout multiple challenges. However, this time, the makeup of the court has shifted.

What are the current affirmative action cases about?

Specifically, the cases are about whether and how colleges and universities can consider an applicant’s race or ethnicity as a factor in higher education admissions decisions.

Interestingly, past cases challenging affirmative action in education have focused on public institutions and have been based on constitutional law — the University of North Carolina case is in that tradition. The Harvard case presents some of the same ultimate questions, but the source of law is a federal statute that applies to private institutions. The Harvard case is also the first to involve Asian American, rather than white, applicants as plaintiffs, which raises a host of additional complex questions.

What are the implications of the court’s decision?

The implications are likely to be significant, as the court has effectively banned race-conscious admissions in both public and private institutions of higher education. What is particularly challenging is that the court said the reasons why the universities were considering race were not constitutional — so it’s not just that the policies themselves were constitutionally flawed (which the court also said), it’s that the justifications for the policies were not good enough because they did not result in measurable, concrete outcomes.

In many states, this will change universities’ practices significantly. However, 10 states have had state-level bans on race-conscious admissions, including California and Michigan. In the majority of those states where the bans are still in place, changes for those states’ public institutions will be minimal, but the changes will be significant for public institutions in states that have not yet been subject to those restrictions.

What are the implications for Michigan universities? 

In 2006, a statewide vote banned affirmative action in Michigan’s public universities. As a result, this ruling will not change the law applicable to admissions for Michigan’s public institutions. However, it will extend the ban on race-conscious admissions to Michigan’s 41 private institutions of higher education.


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