The future after affirmative action

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Nazareth does not expect any significant impact from the Supreme Court ruling, officials say.
(Photo by Paul Ericson)

Daan Braveman and William Destler read the tea leaves the same way in the wake of the U.S. Supreme Court’s June 29 affirmative action ruling. To meet diversity goals, area colleges and universities will have to spend more but achieve less, predict the former presidents of Nazareth University and Rochester Institute of Technology.

The current leaders of some local schools are more sanguine, saying the decision will not impact how they admit students.

In a 6-3 ruling, the high court’s conservative majority declared direct consideration of race as an admission criterion unconstitutional.

Under the ruling, schools are still allowed to have minority-recruitment goals. But to meet them, they can only use means such as asking students to highlight struggles with discrimination or racism in personal essays or targeting low-income students regardless of race.

Such methods have been in place in states that have banned affirmative action for years but have largely failed to significantly increase minority representation, says Braveman, former  president of Nazareth University and attorney who currently has a higher-education practice at Harter Secrest & Emery.

“I don’t think it’s a wise decision,” says Destler, former Rochester Institute of Technology president.

A majority of Rochester Beacon readers agree. In a poll conducted Wednesday, 63 percent of respondents said they disapproved of the ruling. (See separate story on the reader poll.)

Eight states currently have affirmative action bans. They are: California (1996), Florida (1999), Michigan (2006), Nebraska (2008), Arizona (2010), New Hampshire (2012), Oklahoma (2012) and Idaho (2020). The state of Washington enacted a ban in 1998 but rescinded it last year.

Braveman believes the Supreme Court’s decision will most deeply affect elite schools like Harvard College and the University of North Carolina—the two schools whose affirmative action programs were before the court—that turn away all but a tiny fraction of the tens of thousands who apply annually.

With a smaller pool of minority students to choose from as a percentage of all applicants, elite schools will be harder pressed to increase minority enrollment than local schools that typically admit as much 50 percent of applicants, Braveman says.

A long history

The Supreme Court has a long history with enrollment at higher education institutions, even before the recent case brought by Students for Fair Admissions against Harvard and UNC.

In 1978, the landmark Regents of the University of California v. Bakke held that consideration of race could be used to develop diversity in a university’s student body but struck down the concept of racial quotas where programs would set aside seats for students of different races.

Instead, Bakke established that racial and ethnic backgrounds could be used as a “plus” when considering two similarly qualified applicants. The majority of justices in that decision argued not that programs were obligated to correct past injustices (an argument offered by many affirmative action supporters), but instead that diverse campuses benefit society.

“(Lifting up a student from a disadvantaged racial group) does not justify a classification that imposes disadvantages upon (white applicants),” Justice Lewis Powell wrote in the Bakke decision. “The nation’s future depends upon leaders trained through wide exposure to the ideas and mores of students as diverse as this Nation of many peoples.”

The Bakke decision was followed by two 2003 cases, Gratz v. Bollinger and Grutter v. Bollinger.

In Gratz, the court struck down a University of Michigan admissions program that awarded points to applicants who were part of “an underrepresented racial or ethnic minority group.”

Conversely, Grutter upheld a different affirmative action program at the University of Michigan’s law school that used an individualized review of each applicant. That process considered how a student’s background could contribute to a diverse educational environment including race and ethnicity, but also travel-abroad experience, fluency in several languages, personal adversity and family hardship, or participation in community service.

Due to those rulings, mathematically precise systems like the kind in Gratz disappeared and gave way to more holistic considerations like the system in Grutter.

In its application factors, the University of Rochester does list “racial/ethnic status” in a “considered” category along with factors like  “first generation,” “alumni/ae relation,” and “geographical residence.” However, it is just one of 21 factors and falls outside of the “very important” and “important” categories, suggesting that, similar to the University of Michigan’s law school, race or ethnicity is considered after comparing academic GPA, the application essay, or interview.

In 2016, the Supreme Court decided another case with involvement from Edward Blum, Students for Fair Admissions’ president, in Fisher v. University of Texas. A white student claimed she was rejected from the University of Texas at Austin because of preferences given to students of color. While the court ruled in favor of affirmative action in Fisher, it continued to uphold that colorblindness should typically be the rule, with race playing a factor in rare cases.

At RIT, from 2006 to 2022, underrepresented minorities among the student body grew from 11 percent to 16 percent. (Photo: RIT/Facebook)

Affirmative action’s reach

Typically, affirmative action on the basis of race is used only in rare cases and concentrated among selective elite colleges with low acceptance rates.

A federal court in 2021 found that it was a factor in decisions for 1.2 percent of in-state students and 5.1 percent of out-of-state students at the University of North Carolina at Chapel Hill, a school with 20,000 undergraduates and an admit rate of 20 percent.

Harvard, the other university named in the 2023 Supreme Court case, has an even more competitive acceptance rate of 5 percent for its student body of around 9,000 undergraduates. The lawsuit argues that the university uses “racial balancing,” claiming race has been a determinative factor for at least 45 percent of Black and Hispanic students admitted over a four-year period.

Among affirmative action advocates, Harvard is considered a leader in modeling affirmative action. In 2020, Harvard’s student body was 39 percent white, 14 percent Asian, 9 percent Hispanic and 6 percent Black. In comparison, UNC, which uses a holistic admissions model with more than 40 criteria, remains dominated by white students. In 2020, 57 percent of undergraduate students were white with Asian, Hispanic, and Black students accounting for 12 percent, 9 percent and 8 percent, respectively.

In fact, even after decades of affirmative action, analyses suggest that Black and Hispanic students are still underrepresented at elite schools. In 2017, Black students were 6 percent of freshmen at Ivy League schools, but 15 percent of college-age Americans, which is similar to rates in the 1980s.

Beyond race, however, affirmative action creation was also intended to help women, people with disabilities, and veterans, who are all also named in UR’s policies. While it is unclear how much can be attributed to affirmative action, between 1967 and 2009 nationwide, female college enrollment more than doubled. In that time frame, white women ages 25 to 35 with a college degree grew from less than 15 percent to more than 40 percent nationwide.

Impact of bans

Braveman points to a Texas program in place for more than a decade that was meant to be an alternative to race-based affirmative action. He says the program has had some positive results, but it has not significantly moved the needle on percentages of minority students.

Texas did not bar race-based affirmative action, but passed a 2009 law requiring the state’s public universities to accept any student in the top 10 percent of their high school graduating class.

The law did not increase minority representation in the Texas university system, a 2019 Hechenger Report found. A 2011 study reports that the then two-year-old law had encouraged some students to transfer to less academically rigorous high schools in order to raise their class ranking.

Affirmative action was eliminated at the University of California system in 1996. Efforts to develop diversity instead were created by guaranteeing admission to UC campuses to top high school students, establishing a “comprehensive review” to evaluate achievements with respect to available opportunities, and most recently, eliminating SAT and ACT test requirements.

Since then, UC has spent more than half a billion dollars on outreach and recruitment for diverse applicants. At the same time, a 2020 study found that Black and Hispanic students were 40 percent less likely to be admitted to UC’s more selective universities UC Berkeley and UCLA following the policy change.

Texas banned the use of affirmative action in 1996 and instead guaranteed admission to any public university to the top 10 percent of graduating high schoolers. (UT-Austin resumed using affirmative action in 2005 following the Grutter decision)

A 2011 study found that students were incentivized to transfer to lower-performing high schools, which slightly decreased minority students’ representation in the pool. However, a 2023 study found that highly ranked students at more disadvantaged high schools increased their levels of college enrollment and graduation and less highly ranked students at more advantaged schools shifted toward less-selective colleges but did not see declines in overall enrollment, graduation or earnings.

Researchers from Georgetown University recently simulated removing race from college admissions in anticipation of the Supreme Court decision. Alternative methods, such as by academic merit, high school rank or socioeconomic status did not yield more ethnically diverse classes.

“If race-conscious admissions practices are banned, class-conscious alternatives that create preferences for applicants from lower-SES families could be used to partially claw back, maintain, or even slightly exceed current enrollment shares for Hispanic/Latino and Black/African American students, but not for American Indian, Alaska Native, Native Hawaiian, and Pacific Islander students,” the report states. “The most effective way of increasing socioeconomic diversity at selective colleges is to consider race in the admissions process, not to ignore it.”

The report also notes that selective colleges would need to eliminate preferences for legacy students and student athletes to see increased levels of racial and class diversity.

On the other hand, the socioeconomic disadvantage scale, or SED, used by UC Davis since 2012 has seen success in achieving diverse classes with higher proportions of Black and Hispanic students among medical professions. SED ranks students with an adversity score across eight categories that include family income, coming from an underserved community, and whether their parents went to college.

This falls somewhat in line with Chief Justice John Roberts’ majority opinion, which noted applicants could still refer to their racial or ethnic background as long as it was connected to a quality of character the student could bring to the school. Other considerations that were noted could be if a student speaks multiple languages or were the first in their family to attend college. 

“In other words, the student must be treated based on his or her experiences as an individual, not on the basis of race,” the opinion states.

Some are still not convinced by that argument and insist that race and ethnicity should be an important factor in the admissions process.

“Those factors are not ‘interchangeable’ with race,” Justice Sonia Sotomayor wrote in dissent. “Because the Court cannot escape the inevitable truth that race matters in students’ lives, it announces a false promise to save face and appear attuned to reality.”

Diversity at Rochester schools

Locally, no school is close to the selectiveness of Harvard or UNC. UR and RIT have acceptance rates of 40 percent and 70 percent, respectively.

From 2006 to 2022, the number of underrepresented minorities (defined as Black, Hispanic, and Native American or Pacific Islander applicants) at UR has grown from 8.6 percent of the undergraduate population to nearly 13 percent, according the university’s reports.

Asian students, who are not categorized as underrepresented minorities, also increased, from 10 percent to 16 percent of the undergraduate population. In addition, nonresident students (from countries other than the United States) grew from 5 percent to 23 percent.

However, Black student enrollment has fluctuated at UR, rising to as high as 4.7 percent and dipping as low as 3.3 percent, which is its current rate. That rate for Black undergraduate students is identical to the rate in 1982, according to a 1983 statement from provost Richard O’Brien. (The statement, which cited data from the Chronicle of Higher Education, also noted that RIT’s level of Black enrollment was 3.7 percent.)

“The University has, I believe, too few full-time black faculty, too few black students, and too few black staff and administration at the highest level. Many members of the black community find the general atmosphere either insensitive or inhospitable,” O’Brien wrote. “We need changes in all these, and in some curricular areas, not only to meet the concerns of blacks but to improve the milieu for all of us.”

The statement does celebrate “modest progress” in the form of a new recruiting campaign for admissions, a partnership with the Urban League for special scholarships, and expanded curricular offerings for Black history. The efforts were spurred on by a study of race relations at the school and complaints of institutional racism by Black students.

“These and future efforts must be vigorously pursued if we are to make significant change for the better, which I hope to be able to report on in the future,” O’Brien continued. “I appeal to all members of the University to work together to our common goal of a community enriched by its pluralism and diversity. Let us develop together a plan of action to accelerate our slow progress to a unified community.”

Sixteen years later, in 1999, a group of UR minority undergraduates led a sit-in at the office of university president Thomas H. Jackson to peacefully protest a perceived lack of diversity efforts. The protest led to an agreement by the university to craft a diversity mission statement, bolster further minority applicant recruitment efforts, and draft a plan to hire more diverse faculty and staff.

In 2009, university president Joel Seligman said there was “continued progress” in efforts to be a more diverse and welcoming community as part of his third report on diversity.

With each of those efforts, affirmative action was not mentioned as a central part of UR’s strategy.

At RIT, from 2006 to 2022, underrepresented minorities among the student body grew from 11 percent to 16 percent. Hispanic students doubled their proportion from 4 percent of the undergraduate population to 8.7 percent, while Black students remained close to 5 percent during that time period. Asian students also grew, jumping from 6.6 percent to 10.9 percent of the student body.

In 2020, RIT launched the RIT Action Plan for Race and Ethnicity as an effort to reexamine the school’s history, refocus existing commitments and expand their impact in creating a more diverse, equitable and inclusive society.

“Early in 2020, a global pandemic became the canvas upon which the police killings of George Floyd, Breonna Taylor, and others would be forever painted. The tragic events of 2020 have brought into public light a host of systemic racial inequities and injustices,” the plan reads.

The action plan includes three pillars of impact from RIT leadership, African American, Latino American, Native American (AALANA) students, and faculty and staff. Broad initiatives for those pillars include creating a Day of Understanding, Solidarity and Racial Reconciliation, increasing AALANA student levels and retention, and hiring using DEI practices.

Affirmative action policy is not specifically mentioned in any of the pillars of the plan.

Following the ruling, UR said “fostering a culture of inclusion and belonging is a central tenet” of its vision and values. (Photo by J. Adam Fenster / UR)

Effects and alternatives

Braveman believes elite and non-elite schools alike will have to significantly overhaul their admissions systems, adding personnel, and designing and implementing new outreach programs if they want to meet diversity targets.

In the face of such increased expense some schools could decide to downscale diversity efforts, noted Braveman and Destler, former RIT president.

Some schools “will throw up their hands,” Braveman predicts, but area schools will not be among them.

Queries to a number of area colleges and universities by the Rochester Beacon confirm Braveman’s prediction.

“Our undergraduate Arts, Science and Engineering enrollment has been increasingly diverse, and holistic admissions processes take into account all components of students’ academic potential and individual identity,” says UR spokesperson Sara Miller.

“While operating under the law, we will strive to continue diversifying our student body as outlined under the university’s strategic plan,” RIT president David Munson said in a statement.

Expressing similar sentiments are Nazareth and St. John Fisher University officials.

SUNY Brockport president Heidi Macpherson, in a post to students, decried “an egregious ruling that will have serious impacts on students and families seeking the American dream of opportunity through higher education,”

However, she added that she echoes a statement by SUNY trustees and Chancellor John King Jr., who in a June 29 message promised that across the state’s university system, “our commitment to diversity, equity, and inclusion will continue to be a factor in every goal we pursue, every program we create, every policy we promulgate, and every decision we make.”

Some area schools say they will be unhampered by the June 29 ruling.

Nazareth does not currently employ a “check box for race or any other single identity characteristic” and thus will see little if any effect from the ruling, maintains President Beth Paul.

“This decision does not impact the way we admit students to St. John Fisher University, nor change our commitment to providing access to students who will benefit most from a Fisher education,” St. John Fisher president Gerard Rooney assured students in a post.

“We remain committed to and invested in our Diversity, Equity, and Inclusion initiatives, which are unlikely to be affected by any Supreme Court ruling,” Munson asserted in a message to the school’s student body.

Perhaps, but the recent ruling will likely not be the end of schools’ affirmative action legal challenges, Destler believes. It will instead “put admissions departments under a microscope” as affirmative action foes seek to police colleges and universities to ensure that race-based criteria are not used, he predicts.

“Schools will need to be really clear about why they value diversity,” Braveman says.

Whether race-based or not, strategies area schools have so far used and are currently employing to achieve diversity have for the most part not managed to bring their minority-student populations in line with minorities’ representation as a slice of the country’s population.

According to the U.S. Census Bureau, African Americans, Hispanics and Asians represented 12.6 percent, 18.9 percent and 5.9 percent, respectively, of the country’s total population in 2021.

Over an eight-year span between 2012 and 2020, representation of all three groups at area colleges and universities have for the most part remained in single digits, analyses by Data USA show.

At Nazareth, Black graduates accounted for 5.3 percent of the class of 2020. Hispanics accounted for 6.1 percent  and Asian graduates were 3.1 percent of a class that was nearly 80 percent white. Foreign students of unspecified race and students of two more races filled out the class.

Black or African American students made up 3.8 percent of RIT’s class of 2020. Hispanics accounted for 6 percent, while Asians accounted for 8.2 percent. White students made up nearly 59 percent. Foreign students of unspecified race accounted for 20.2 percent.

Black or African American students represented just shy of 4 percent of UR’s 2020 graduates; Hispanics nearly 5 percent; and Asians 8.5 percent, while white students accounted for 44 percent and foreign students of unspecified race made up 35.8 percent of the class.

Black or African American students accounted for 10.6 percent of SUNY Brockport’s 2020 graduating class and Hispanics for 6.8 percent, while Asian students were 2.6 percent of the class, which was 76.3 percent white.

St. John Fisher’s 2020 graduating class was 83.7 percent white, 5.1 percent Black or African American, 6.6 percent Hispanic and 3.4 percent Asian.

Financial impact

In addition to increasing admission costs, local schools trying to up their diversity game will face other financial pressures, Braveman says. Recruitment of more low-income students will mean handing out more financial aid.

While tuition costs at schools have gone up significantly, outpacing inflation, financial aid handouts have reduced some college and university net income, Braveman says.

A College Board report shows that four-year public institutions’ net realization of the full cost of undergraduate tuition fell from 45 percent of the total charged in the 2009-10 academic year to 43 percent in the 2019-20 year. Community colleges’ net realization fell from 35 percent to 32 percent. Private schools’ net realization on undergraduate tuition fell from 64 percent to 56 percent during the same period.

Destler concurs that high costs of financial aid pose financial challenges for schools, but also says that “schools should not be let off the hook for tuition increases.”

Aside from the financial ramifications of the recent decision, Destler and Braveman see the ruling as an unfortunate step backward.

Chief Justice Roberts, who penned the majority opinion in the recent affirmative action case, wrote in a 2007 decision that struck down the use of race as a factor by Seattle public schools in assigning students to schools posited that “the way to stop discriminating on the basis of race is to stop discriminating on the basis of race.”

Destler disagrees.

“We do not have a colorblind society,” he counters. “We have not outgrown the need for affirmative action.”

Roberts’ and the majority’s chief justification for barring direct use of race as a factor in admissions lies in their interpretation of the 14th Amendment’s Equal Protection Clause.

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law,” the clause declares.

“Eliminating racial discrimination means eliminating all of it, Roberts wrote in his majority opinion released last week. “Ac­cordingly, the Court has held that the Equal Protection Clause applies without regard to any differences of race, of color, or of nationality—it is universal in its application. For the guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color.”

Like Destler, Braveman disagrees with the majority’s reading of the Equal Protection Clause.

A former Syracuse University law school dean who currently teaches a constitutional law course at SU Law, Braveman notes that the recent ruling effectively reverses the Supreme Court’s 2003 ruling in Grutter.

In that case, the high court cited the Equal Protection Clause as justification for using race as an admission criterion as long as it is not the only factor taken into account.“The only thing that has changed in the 20 years (since Gutter),” says Braveman, “is the composition of the court.”

Will Astor is Rochester Beacon senior writer and Jacob Schermerhorn is a Rochester Beacon contributing writer. The Beacon welcomes comments and letters from readers who adhere to our comment policy including use of their full, real name. Submissions to the Letters page should be sent to [email protected]

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