Throughout the Supreme Court’s consideration of racial preferences in higher education a dominant theme has been the Court’s view that preferences should be temporary.  In Bakke, even the strongly pro-preference Justice Blackmun suggested that preferences should only last a short period – perhaps a decade. In her opinion for the Court in Grutter, Justice O’Connor in turn stressed that one element of the narrow tailoring requirement is that preferences must be temporary and famously observed that she expected preferences would be unnecessary in twenty-five years (i.e., by 2028).

A Transitional View of Preferences? Two Options

The theory behind this “transitional” view of preferences appears to be twofold.  First, preferences were seen as part of affirmative action strategies that would break down old barriers and persuade previously excluded groups that paths were now open.  Once a minority group could see that it was welcome at and could become well-represented at a school, then many more prospective students would apply and preferences would become unnecessary. Second, it was anticipated that large racial gaps in academic preparation would steadily disappear over time as segregation declined and as the quality of schools attended by Blacks and Hispanics improved.

Because data on university admissions is relatively scarce, and has become scarcer over time, it is difficult to determine in any definitive way whether preferences in higher education have become smaller, grown larger, or stayed the same over the past several decades.  However, the available evidence does not suggest a decline:

1. Black-white test score gaps declined in the 1960s and 1970s, but have remained largely unchanged since the mid-1980s.  On the SAT (widely used in college admissions), LSAT (used in law school admissions), and MCAT (used in medical school admissions), the Black-white gap in median scores has remained at around one standard deviation.


2.  The National Assessment of Educational Progress, (“NAEP”) which uses a variety of measures to assess educational proficiency of K-12 students, reports little change in Black-white and Hispanic-white gaps in student achievement over the past three decades.  There have been occasional bright spots. As Barton and Coley noted in an important report, during the 1970s and 1980s there was a “substantial narrowing of the gap in the subjects of reading and mathematics.” P. 2. During the same period, Black-white gaps in parental income and high school graduation rates also declined. Strikingly, however, black-white test score gaps and school-achievement gaps have remained largely stagnant since the 1980s. On the NAEP, median Black scores tend to lag behind whites by the equivalent of about four school years — i.e., the achievement levels of the median Black 11th grader are comparable to those of the median white seventh-grader. The Hispanic-white gap on the NAEP has also stagnated at the equivalent of two to three school years.


3.  In an analysis published in 2012, Richard Sander examined data from a sample of law schools, covering admissions decisions before and after the Supreme Court’s Grutter decision, and found a significant increase in the size of preferences after Grutter.


 4.  Where litigation has brought about disclosure of university admissions data over the past few years (such as in the Harvard, Yale, and UNC cases) these have consistently showed the use of large racial preferences.


 5.  A New York Times report in 2017 found that Under Represented Minority (URM) enrollments at elite undergraduate colleges were, on average, no larger, and in many cases smaller, in the 2010s compared to the 1980s.

Careful consideration of these and many other related factors is essential, as they provide important contexts and data points as one assesses both the need for and nature of preferences in the admissions process.

List of Citations

Jeremy Ahkenas, Haeyoun ark & Adam Pearce. Even With Affirmative Action, Blacks and Hispanics Are More Underrepresented at Top Colleges Than 35 Years Ago. 2017: New York Times.

Paul E. Barton & Richard J. Coley. The Black-White Achievement Gap: When Progress Stopped. 2010: Educational Testing Service.

National Center for Educational Statistics, NAEP: Trends in Academic Progress: Reading 1971-2021; Mathematics, 1973-2021. 2012: United States Department of Education.

Richard V. Reeves & Dimitrios Halikias. Race gaps in SAT scores highlight inequality and hinder upward mobility. 2017: Brookings Institution.

Richard Sander. Why Strict Scrutiny Requires Transparency: The Practical Effects of Bakke, Gratz, and Grutter, pp. 277-99, in Kevin T. McGuire (Ed.), New Directions in Judicial Politics in Judicial Politics. 2012: Routledge.

Additional Reading

Peter Arcidiacono & Michael Lovenheim. “Affirmative Action and the Quality-Fit Trade-off.” 2016: Journal of Economic Literature, Vol. 54, No. 1, pp- 3-51.