The U.S. Supreme Court is expected to release a ruling on affirmative action sometime in June. Some experts believe the court could overturn decades of precedent – and the decisions could have far-reaching impacts that may take years to be fully felt.
It’s not entirely clear how the decisions will affect Indiana universities – multiple schools declined to comment for this story – but several experts say the ripple effects of the rulings will go beyond the selective universities named in lawsuits before the Supreme Court.
Affirmative action, a legal doctrine cemented in 1965 under President Lyndon B. Johnson, was intended to prohibit employment discrimination based on race, religion, color, and national origin.
For universities, affirmative action has largely meant that race is one of the factors considered as part of a student’s application -- and the practice has been part of efforts to both grow and maintain a diverse student body.
But the impacts of the doctrine are nuanced. Schools are barred from instituting racial quotas or using formulas that give students a mathematical advantage based on race. Instead, affirmative action has been described as a kind of “tiebreaker” for selecting between qualified candidates.
Affirmative action in college admissions has faced legal challenges since the 1970s – many of which have worked to narrow the scope of how the doctrine works in practice.
But the two separate cases currently before the U.S. Supreme Court seek to end affirmative action altogether.
Two lawsuits, one against Harvard and once against the University of North Carolina, argue that the schools’ affirmative action policies have discriminated against white and Asian American applicants by giving preference to Black, Hispanic, and Native American applicants.
Leigh Ann O’Neill is the managing director of legal advocacy for the Foundation Against Intolerance and Racism (FAIR), which filed an amicus brief with the Supreme Court on behalf of the group suing Harvard, Students for Fair Admissions. She said when universities select students based on race, it doesn’t take the full person into account.
“So when we utilize a group preference in place of individual traits and characteristics, we eliminate the individuality of each person,” she said.
O’Neill said she’s not opposed to schools working to diversify their student bodies.
“I think that's always the goal,” she said. “The question becomes, what do you mean by diverse? I mean, the academic setting relies upon diversity in background prospective experiences.”
Jin Hee Lee is with the NAACP Legal Defense Fund, which submitted a brief in support of Harvard. She said that the notion that race shouldn’t be considered as part of college applications assumes that race plays no role in the opportunities people have over their lifetime.
“This whole notion of whether or not you can consider race or should consider race in college admissions is really, in many ways, a perspective on our society, and whether race matters or not, or whether it has an impact on people's lives,” she said. “Do we ignore that and pretend that it doesn't exist…or do we tackle those racial inequalities and be race-conscious so that everyone is truly equal? Those are two very, very different perspectives on life and on scenarios, society, the United States.”
There are some questions about whether the impacts of affirmative action are more acutely felt in elite institutions that tend to be far more selective, but Hee Lee said affirmative action has a ripple effect regardless.
“I think that we should not think that this is an issue just reserved for those institutions,” she said. “Because, again, this affects everyone. Those institutions are oftentimes pathways to leadership positions – especially flagship universities, for example, are incredible opportunities for people…And so to really think about, who is it that we're giving this access to, and who is it that's going to represent our country? That's incredibly important.”
Institutional impact
Multiple Indiana universities – including university admissions departments – declined to comment for this story. The Indiana Commission for Higher Education also declined to comment on the topic ahead of the Supreme Court decision.
But the University of Notre Dame is one of over 50 Catholic schools that submitted an amicus brief in support of race-conscious admissions. The brief even cites Notre Dame’s mission statement, which recognizes “the intellectual interchange essential to a university requires, and is enriched by, the presence and voices of diverse scholars and students.”
Jennifer Mason McAward is a Notre Dame law professor who spoke with WFYI as an individual not representing the university. She said that schools in Michigan and California stand as good examples of what can happen if race-based admissions are barred.
“Various states have barred their state universities from considering race for quite some time. So, for example, in California and Michigan, so we have the experience of those schools,” she said. “And at least, at kind of the elite level of universities, the numbers of minority applicants, admitted minorities dropped off pretty steeply after race-based admissions were barred. They've been able to increase those numbers over time, but it's taken lots of time.”
In an amicus brief filed in support of Harvard, the University of Michigan outlined that after a 2006 state ban on affirmative action, the number of underrepresented minorities at the school fell from 12.9 percent in 2006 to 10.67 percent in 2014. More recently those numbers have climbed, but the school argued that even with “extensive efforts to increase minority enrollment through race-neutral methods”, it has taken 15 years to essentially break even with diversity levels prior to the passage of the 2006 ban.
The University of Michigan’s numbers are even starker when looking at specific racial groups. Black undergraduate enrollment at the University of Michigan fell from 7 percent to roughly 4 percent between 2006 and 2021. Among Native American students, enrollment dropped from roughly 1 percent to 0.11 percent.
A similar brief filed by the University of California underlined changes to the school system’s racial makeup since the passage of a state ban on race-conscious admissions in 1996. In 1995, Black students made up over 7 percent of the freshman class at UCLA. By 1998, that number was at 3.4 percent.
In the brief, the university underscored that those impacts were more pronounced at more selective schools.
McAward said schools have used a variety of workarounds in order to rebuild diversity in states where affirmative action has been banned, including increases in outreach or attempts to look at other factors – such as socioeconomic status.
“And so that's another way that schools have sought to increase the diversity of their applicant pool, so that by the time they've built a diverse applicant pool, they then don't look into race at the admissions decision point,” she said. “But then are still able to enroll a diverse class.”
Many experts believe the Supreme Court will strike down affirmative action, either in part or in full when its decision is released this year.
McAward said if that happens, it will represent a major shift in precedent.
“The Supreme Court kind of first endorsed race-based affirmative action in 1978, and reaffirmed that approach in 2003, and in 2016,” she said. “And so if the court were to reverse course, this would just be another example of the court kind of reversing some long-standing precedence that it's had.”
If that reversal happens, schools will have to act – and that process begins with the admissions office.
Michelle Sandlin is the interim associate executive director at AACRAO, the American Association of Collegiate Registrars and Admissions Officers. The organization has advised schools to prepare for a post-affirmative action landscape.
“Admissions is the front door to the whole institution,” she said.
That means that if affirmative action is overturned, the first step for institutions is to go through their admissions policies and procedures.
“You've got to look at what you're doing in your full admissions process,” Sandlin said. “You’ve particularly got to pay attention to any of your non-academic measures or your non-cognitive measures. Are they race neutral? What’s involved in them?”
Admissions policies and other programs that are race-neutral but take other non-academic life factors into account -- like socioeconomic status or where a student is located -- could also possibly be impacted.
Sandlin also said AACRAO has stressed the importance of university missions – a task she said came “at the top of the list” for an audit of admissions practices.
“Your admissions requirements have to be aligned to your mission, about who you are, and who you will serve,” she said. “So that's extremely relevant.”
Being ready for the decision is particularly important for admissions officers, Sandlin said, because they work so far in advance.
“Admissions works 18 months ahead of the rest of campus, so they're going to be planning this fall for ‘25-’26,” Sandlin said. “So that's why they have got to be ready to go. They're not going to have a lot of time.”
Once those processes are reviewed so they can be compliant with the Supreme Court decision, Sandlin recommends institutions look at other programs that could be non-compliant -- like first-year experience programs or scholarship opportunities.
“AACRAO’s guidance tries to open their minds about – don't just think about admissions, because everything comes through admissions, and then boom, it goes to the whole campus,” she said.
The decision is expected to be made this June or July.
Contact WBAA/WFYI reporter Benjamin Thorp at bthorp@wfyi.org. Follow on Twitter: @sad_radio_lad.
Contact WFYI economic equity reporter Sydney Dauphinais at sdauphinais@wfyi.org. Follow on Twitter: @syddauphinais.
