Supreme Court Affirmative Action Ruling: Dear Harvard, Please Change Your Affirmative Action Policy

ByGabriel Grand

Dear Harvard,

As the nation anxiously awaits the Supreme Court’s ruling on Fisher v. University of Texas, which could severely limit or ban the consideration of race and ethnicity in college admissions, I would like to draw your attention to an alternative form of affirmative action. 

While socioeconomic class is already used as a factor in admissions, it is often exploited for the purpose of assembling a superficially “diverse” group of students — a tool to make sure that there are enough photos showing smiling, multi-ethnic faces to line glossy pamphlets and brochures.

I urge you to keep in mind that the principal objective of any American institution of higher learning should be to serve as an instrument of equal opportunity. It’s high time that Harvard and other universities start to view class-based affirmative action as a fairer way of making admissions decisions.

While some might argue for the abolition of all special admissions considerations in order to select only the most qualified students, adoption of such a policy would shun, not embrace, Harvard’s duty to the public. Not all applicants are brought up with the same educational opportunities, and to admit students based only on objective qualifications such as standardized-test scores would be to close the gates of Harvard to children born to low-income families. Regardless of what the Supreme Court rules, I encourage Harvard College to consider a class-based affirmative action policy as an alternative to the use of race as a determining factor in undergraduate admissions.

In examining the merits of affirmative action, it is important to understand why race is increasingly becoming an outdated and undesirable tool for the promotion of educational equality. First, from a legal standpoint, the use of race to differentiate between applicants is frowned upon by the Constitution. The Fourteenth Amendment plainly prohibits racial discrimination on the state level, and the Supreme Court has consistently subjected all cases of governmental racial discrimination to “strict scrutiny,” as per its ruling in Adarand Constructors v. Peña (515 U.S. 200) in 1995.

As Justice Powell wrote in his decision of Regents of the University of California v. Bakke (438 U.S. 265) in 1978, “Racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination.” Though Harvard is a private institution and consequently not subject to these judicial precedents, these cases reflect the growing public anxiety of preferential racial treatment. In order to avoid accusations of “reverse-discrimination” which could potentially harm the college’s reputation, Harvard should steer clear of race-based affirmative action.

There also exists compelling evidence to indicate that race-based affirmative action is already obsolete. In her ruling in Grutter v. Bollinger (539 U.S. 306), Justice Sandra Day O’Connor voted to uphold the Law School of the University of Michigan’s utilization of race in its admissions process as a means to achieve a diverse student body. Nevertheless, she acknowledged, "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."

Justice O’Connor's opinion looks upon racial preference as a temporary solution to bridge the gap, formed by historic and current negative discrimination, between minorities and white students. As Justice Ginsburg observes, this theory assumes that “over the next generation’s span, progress toward nondiscrimination and genuine equal opportunity will make it safe to sunset affirmative action.” Yet even as racial discrimination in this country lessens, as evidenced by the fact that “racism is not the institutional and legal straitjacket it was 50 years ago,” divisions in economic class have only become more pronounced.

Furthermore, a recent study that will be published in the Harvard Law & Policy Review this summer suggests that class-based affirmative action may be a more effective way of increasing racial diversity than race-based affirmative action. These results, although preliminary, suggest that colleges can move away from race-based affirmative action programs without seeing any loss in the number of minority students who are admitted.

Racial preference in education emerged as a solution to the Brown v. Board-era problem of entirely segregated schools. In his 1970 decision of Swann v. Charlotte-Mecklenburg Board of Education (402 U.S. 1), Chief Justice Warren Burger wrote, “The target of the cases from Brown I to the present was the dual school system.” He noted that two-thirds of the 21,000 black students in the city of Charlotte attended schools which were either totally black or more than 99% black.

Though not a few school districts still remain subject to de facto segregation, it is clear that today, socioeconomic status plays a far greater role than race in determining a child’s academic potential. As Richard Kahlenberg argues in a 2012 New York Times article titled "Integrating Rich and Poor Matters Most," “research shows that middle-class schools are 22 times more likely to be high performing than high-poverty schools.”

Furthermore, as blacks, Latinos, and other minorities ascend to positions of affluence and wealth, their children continue to benefit gratuitously from racial preference. As President Obama himself stated, Sasha and Malia Obama “should probably be treated by any admissions officer as folks who are pretty advantaged.”

Obama also acknowledged that race-based affirmative action leaves out, as he put it, “white kids who have been disadvantaged and have grown up in poverty and shown themselves to have what it takes to succeed.” In the 59 years since Brown v. Board of Education, the primary source of disadvantage for college applicants has shifted from race to class, and our affirmative action policies need to catch up.

While the majority of American colleges are still behind the curve, two schools, UCLA and UC Berkeley, are leading the field. “Despite all the political heat that still surrounds the issue in California, its universities seem to be pointing to a better version of affirmative action — one that uses a little less race and a lot more class,” wrote David Leonhardt in The New York Times.

Cameron Huey, a UC Berkeley alumnus, expresses a similar opinion: “Our challenge is to craft an alternative to affirmative action but not demarcate us based on race... Adopting socioeconomic affirmative action that helps the poor of all races may be the answer to the debate about how to level the playing field in America.”

UCLA and UC Berkeley have by no means ceased to take race into account in their undergraduate admissions. Still, Proposition 209 has forced these schools to examine race in the larger context of the disadvantages and setbacks a particular student may have faced during his or her high school career. As Eugene Robinson succinctly stated in The Washington Post, “diversity is a process, not a destination.”

Examining race in a greater context shifts the purpose of affirmative action towards providing equal opportunities to students who have succeeded despite difficult socioeconomic circumstances as opposed to simply assembling a superficially diverse group of students. Of course, Harvard must eventually account for factors like legacy, athletics, and fundraising in the formation of a new undergraduate admissions plan. Ultimately, however, the college must decide whether and to what extent the various practical considerations of the modern college admissions process can step aside to make room for the American dream.


A concerned student