Ever since the Supreme Court announced on January 24th that it would review appellate court decisions upholding the use of race in admissions at Harvard and the University of North Carolina, there have been a bevy of pronouncements on what the Court’s opinion would mean. One side bemoaned what they believed would be the death of affirmative action, while the other cheered its demise.  The one thing nearly all these commentators have in common is the assumption that the justices will reverse a string of opinions going back nearly fifty years and declare the use of race in college admissions unconstitutional.  This sentiment received a huge boost after the Court upheld a Mississippi law restricting abortions and Justice Alito, in an angry and arrogant opinion, reversed Roe v. Wade, another precedent of long standing.

 I am not so sure.

            Affirmative action began in the Kennedy-Johnson years, and originally aimed at ameliorating the effects of three centuries of slavery and Jim Crow on African Americans.  The Ivy League colleges were amongst the first to go out hunting for African American students. Because of the poor quality of public schools that were still segregated, both north and south, very few young men and women of color could meet the entrance requirements. Many were admitted in the hope that they would be able to do the work, and the schools provided not only financial aid but tutoring and remedial assistance. In some schools a good percentage of these admits succeeded.  One example is Justice Sonya Sotomayor, who proudly claims to be an “affirmative action baby.” She says she would never have gotten into either Princeton or Yale Law School without those compensatory programs.

Within a fairly short period of time, however, several things happened.  Other groups, such as women, Latinx, and the disabled, called for programs to compensate them for past discrimination. In academia, the idea of compensation for past injustice morphed into a search for diversity: the belief that students of all color, gender, and ethnicity learned better with representatives from all these once-barred groups in the classroom.  I and most other academics believe that such diversity makes for better education.

It should be noted that the question of affirmative action is not limited to the upper tier of Ivies and Little Ivies and Public Ivies. Many state schools who at one time took everybody who applied are finding that they are besieged by far more high school students wanting to get in than they have room for, and at a time when many states are cutting back on public funding for their state colleges and universities.

            The Supreme Court first ruled that colleges and professional schools could take race into account in Regents of the University of California v. Bakke (1978).  Justice Lewis Powell’s opinion held that while colleges could not use quotas or other rough measures, they could take race into account in a holistic process in which race would not be the determining factor, but one consideration among others.  The Court reaffirmed this holding in the 2003 Michigan law school case, Grutter v. Bollinger, and most recently in Fisher v. University of Texas at Austin (2016). But two key votes in those cases, Sandra Day O’Connor and Anthony Kennedy, are no longer on the Court

            In this line of cases the Court recognized diversity in the classroom as a compelling justification, and if the university used race in a limited and narrowly tailored manner, it did not violate either the 1964 Civil Rights Act or the Fourteenth Amendment’s Equal Protection Clause. The Court of Appeals for the First Circuit, in its opinion upholding Harvard, said that the school’s admission program satisfied strict scrutiny “because it does not penalize Asian Americans, engage in racial balancing, overuse race, or neglect race-neutral alternatives.”

            There have, of course, long been critics of using race or anything other than “merit” as a criterion for admission. One of them is Edward Blum, the head of Students for Fair Admission, the plaintiff on behalf of Asian American students in both the Harvard and North Carolina cases.  Blum also arranged the lawsuit in which Abigail Fisher sued the University of Texas over its admissions policy.

            For Blum, and for many others (and it should be noted that critics of affirmative action run the gamut of both liberalism and conservatism), “every college applicant should be judged as a unique individual, not as some representative of a racial or ethnic group.” For Blum, college admissions should go to those with the highest rankings in standardized admissions tests and high school GPAs. If this were to lead to a class made up of 95 percent Asian Americans or whites or women, that would not matter.

            There are many problems with this argument, even as it seems to encapsulate the traditional American emphasis on individual accomplishment. Ask any African American or Latinx whether the color of their skins is an essential part of their uniqueness, and the answer will be yes. Ask any woman if her gender has played a role in shaping who she is, and the answer will also be yes.

Several of the students testifying at the Harvard trial said it would be impossible to separate their race from who they were or what they had done, factors that admissions officers care deeply about. Judge Loretta C. Biggs, who heard the North Carolina case, emphasized this in her opinion: “Race is so interwoven in every aspect of the lived experience of minority students. To ignore it, reduce its importance and measure it only by statistical models . . . misses important context.”

            There has been a great deal written about “merit” in recent years, nearly all of it debunking the idea that merit is or can be some sort of race-neutral or class-neutral objective standard. If we look at the class admitted to Harvard for Fall 2019 (the class used for the lawsuit), 43,330 students applied, and Harvard offered admission to 1,950, or 4.5 percent; of these 1,660 would enroll. Of those offered a place, 24.5 percent identified as Asian American, 14.8 as African American, and 12.4 percent as Latinx. A plurality of undergraduates are white students from the United States, and 12 percent are international.  It should be noted that Asian Americans make up only six percent of this country’s population.

            Harvard does give substantial preference to what it calls ALDCs—recruited athletes, legacies, applicants on a special list of the dean of the College, and children of faculty and staff. Although ALDCs comprised only five percent of the applicant pool, they constituted 30 percent of the entering class.

            What about merit? What about those supposedly objective numbers? In the applicant pool, approximately 2,700 students had perfect verbal SAT scores (800), 3,400 were perfect in the math SAT, and over 8,000 had high school GPAs of 4.0 (or if they took honors or AP courses, they could have even higher GPAs). Harvard easily justified its claim that it had to look well beyond basic scores to get a diversified class.

            What Blum and other critics fail to take into account is that Harvard, North Carolina and others highly rated schools are looking for far more than racial or gender diversity. Compared to the Big Ten schools, for example, where entering classes number in the thousands, Harvard is a small school. Yet it fields football, basketball, baseball and other intercollegiate sports teams.  Its students publish a daily newspaper, put on musical and dramatic events, as well as a host of other extracurricular activities.

            The Ivy League does not offer athletic scholarships.  Student athletes may be recruited by coaches, but they must meet the standards of the entering class. If an admissions officer sees three people with near identical SAT and GPA scores, and one of them played basketball in high school and a second had the lead in the senior play, they will easily be chosen over someone who had good, perhaps even better, test scores.

            If two applicants both offer roughly equal academic credentials, they will get past the first cut-off.  Then the committee will ask, which one cannot only benefit from being here, but which one can offer more? Race is one consideration, as is ethnicity, as is where one comes from. I benefitted when I applied to Columbia because I came from a small upstate town and not from New York City. The College could have filled up an entire class with applicants from the city’s two premier schools, Bronx Science and Stuyvesant, but that is not what it wanted.

            This is true not just at undergraduate schools. “Most people think of assembling a law school class as putting a puzzle together,” says Andrew Cornblatt, the veteran dean of admissions at Georgetown Law School. “For me it’s more like creating an orchestra with lots of different instruments, not just violins. I am always struck by how many talented, interesting, well-qualified applicants we receive from all over the world.” (For the 2021-2022 year, Georgetown Law received over 14,000 applications for an entering class of roughly 700.)

            It is true that taking race or ethnicity or gender or disability or geography into account could wind up discriminating against some groups, as it did against Jews a century ago. Harvard, however, is well aware of the strictures the Supreme Court has imposed on taking these considerations into account. The process does not satisfy those who do not get in (nineteen out of every twenty applicants), but if Harvard did not pick and choose carefully, its entering class might well be the very best and brightest according to the numbers, but it would not be diverse, it would not be able to carry the school’s many extra-curricular activities, and it would be neither challenging nor satisfying for either the faculty or the students. As Judge Burroughs noted, Harvard’s admissions system may be “imperfect,” but its discriminatory efforts to achieve not only a bright class, but also a diversified one, seems to be working well.

            I do not know how the Supremes will vote. In both the Harvard and North Carolina cases, the schools won in both the trial courts and in appellate review. In all of the cases the judges wrote extensive opinions justifying how the schools used race in a holistic review process, one that closely followed the strict guidelines set down by the high court in the Michigan and Texas cases. The latter case is only six years old, and normally the Court has been reluctant to overturn recent precedents.   But as the conservative majority showed in the Mississippi abortion case, it does not really care about precedents. The justices will hear oral argument in the cases on October 31, but the opinion will probably not come down until next June.

Should this conservative bloc strike down affirmative action with the same arrogance it showed toward Roe v. Wade, it will have some immediate impact. But in the long run it will not make much difference.

            First of all, of the more than 6000 colleges and universities in the United States, less than one in ten employs some form of affirmative action in its admissions process. In 2017, only 352 colleges stated that they considered race as a factor in admissions. Like Harvard and North Carolina, they have taken seriously the judiciary’s command that race must be only one factor—and never the determining one—in a holistic admissions process. In addition to that, we now have a growing African American middle class whose children go to the same schools as their white neighbors and who can compete with them in terms of SAT and GPA scores.

            There are many ways that admissions officers can determine the race or ethnicity of an applicant. A student need not say in his or her essay that “I am black” or “I am Hispanic.” In what ZIP code do they live? An applicant named Gonzales is pretty certain to be Latinx. Latitia is probably black, and Wong will probably be Asian. What activities the student took part in while in high school, the subject of the student essay, reference letters, and alumni interviews can all inform an astute admissions officer just as surely as checking off a box marked race or ethnicity. Since many schools give preference to the children of faculty or staff, the admissions people are certainly aware of whether that faculty member is a person of color.

            Blum objects to the fact that admissions officer determine that someone may not have the right type of personality to fit in.  That is in fact part of the job of an admissions office.  A high school student with perfect SAT and GPA scores but who has put all her energy into studying and has no extra-curricular involvement is not the type of well-rounded individual colleges—especially the elite schools—are seeking.

            It is very possible that Justice Alito will give us yet another angry opinion.  He opposed the decision in the Fisher case and read his bitter dissent from the bench.  Admissions offices are already preparing for a negative decision. A year after Prop 209—which forbade California schools from taking race into account in admissions—the number of blacks in the freshman class at Berkely plunged by fifty percent, and the number of Hispanics nearly that much. Within a few years, those numbers started climbing back up.  If we look at the composition of a Harvard or North Carolina class a few years hence, my guess is that it may well look like the Class of 2023 that will graduate next spring.

–Melvin I. Urofsky is the author of The Affirmative Action Puzzle (Pantheon Books, 2020).