Bloomberg Law
Feb. 1, 2022, 9:00 AM

Race-Conscious Admissions Policies Are Crucial to an Equitable Society

Deborah Archer
Deborah Archer
American Civil Liberties Union

The disproportionate illnesses and deaths among Black and Brown essential workers during the pandemic are a reminder of the gap between White students and the proportion of Black, Indigenous, and Latinx students with higher education.

Access to higher-earning, white-collar work—work that can be done from home—often flows from access to education. As the U.S. Supreme Court considers race-conscious admissions policies in secondary education once again, we can look to the pandemic’s impact on the workforce for a glimpse of how a blow from the highest court to admission policies that consider race would deepen this divide.

We’ve been here before: The lower courts found that Harvard and University of North Carolina-Chapel Hill’s consideration of race as one factor in admitting students is consistent with the Fourteenth Amendment and deeply established Supreme Court precedent. So long as a school’s consideration of race is narrowly tailored to serve a school’s compelling interest in student diversity, the Supreme Court found in 2016, considering race as one factor in an individualized, holistic admissions process is permissible and can serve democratic values.

Given this established precedent, the choice to review these cases is particularly troubling, and portends a continued regressive shift away from the deliberate efforts of higher education institutions to increase diversity and equity in their student bodies and in American society.

Considering a student’s entire background—including their race—is not just constitutional, it’s an essential part of building a more equitable society. Acknowledging the reality of race does not discriminate against White, Asian, or other students, as opponents of such policies insist.

Instead, this acknowledgment attempts to rectify decades of systemic disadvantages that have obstructed, and continue to obstruct the inclusion of BIPOC students in our higher education institutions. The so-called “race neutral” admissions policies preferred by those working to end affirmative action, which do not consider race, serve only to perpetuate structural inequality.

Feigning color blindness in college admissions is a convenient way to push our country’s legacy of racism out of sight and pretend it doesn’t exist. But disregarding race, ethnicity, and class divides and the inequities that flow from them won’t make them go away; it will ensure that they continue to flourish.

As the late Justice John Paul Stevens once noted: “There is no moral or constitutional equivalence between a policy that is designed to perpetuate a caste system and one that seeks to eradicate racial subordination.”

Race-Neutral Admissions Consequences

We already know what happens when schools revert to “race-neutral” admissions policies: enrollment numbers among underrepresented groups drop dramatically. Schools become less diverse, and less accessible. For example, in the first year University of California-Berkeley eliminated race as a factor in its admissions, the admissions rate for Black students dropped from 50% to 20% and from 45% to 21% for Latinx students.

These stark numbers illustrate more than who gets into which schools—they also foreshadow lower earnings for students of color down the line. Hampering the long-term earning potential of BIPOC students will only perpetuate the shameful socioeconomic and racial inequality that increasingly characterizes our country.

The harm of exclusion is far-reaching: Research indicates that closing gaps in educational attainment would boost our economy in the long term. A diverse, educated workforce is a boon to our entire country.

As the court examines admissions policies at Harvard and UNC-Chapel Hill, a broader reckoning with legacy admissions policies and their role in upholding systemic inequality in education is also overdue.

Just as “race-neutral” admissions policies ultimately work in favor of White students of a higher socioeconomic status, the admission of students based on generational attendance and wealth ultimately works to exclude low-income Black and Brown students from access to higher education. Legacy admissions only tip the scales toward students who are already more likely to be admitted—those who are more likely to be White and higher-income.

Elite Schools Favor Legacies and Donors

One need only look at what’s happening in our nation’s “most elite” schools to see the impact: More White students have been admitted to top 10 universities who have benefited from legacy admissions than Black or Latinx students who were admitted in part because of affirmative action policies. And in the Harvard case, legacy admissions and other preferences disadvantaged Asian applicants—not affirmative action.

At some universities, freshmen classes were made up of more White legacy students than Black and Latinx students combined. These legacy admissions policies continue to exclude students of color and low-income students and drive a deeper wedge in the higher education representation gap, comprising 10% to 25% of available slots at top universities, according to Education Reform Now.

Failing to consider race in higher education admissions processes or extending preferential treatment to students whose parents can donate large sums or boast generations of attendance at an elite school doesn’t just change the demographic composition of campuses. It sets Black and Latinx students back for decades to come.

To achieve a more diverse, equitable student body and address long-standing inequities in higher education, institutions must both be able to consider race as an admissions factor and end legacy admissions policies. The ramifications of the court’s interpretation of these cases will echo throughout our society for generations to come—to its detriment, or to its great advantage.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Deborah Archer is the president of the ACLU and a professor of clinical law at New York University School of Law.

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