Explainer: What happens if U.S. Supreme Court bans affirmative action?

Demonstrators gather in support of affirmative action as the U.S. Supreme Court is set to consider whether colleges may continue to use race as a factor in student admissions in two cases, at the U.S. Supreme Court building in Washington, U.S. October 31, 2022. REUTERS/Jonathan Ernst

The U.S. Supreme Court is weighing whether colleges can continue to consider race as part of their admissions decisions, a practice commonly known as affirmative action.

Here is what to know about the policy, its history and the possible consequences of the court’s decision.

WHAT IS AFFIRMATIVE ACTION?

In the context of higher education, affirmative action typically refers to admissions policies.

Colleges that take race into consideration say they do so as part of a holistic approach that reviews every aspect of an application, including grades, test scores and extracurricular activities.

The goal of race-conscious admissions policies is to increase student diversity. Schools also employ recruitment programs and scholarship opportunities intended to boost diversity, but the Supreme Court litigation is focused on admissions.

WHICH SCHOOLS CONSIDER RACE?

While many schools do not disclose details about their admissions processes, taking race into account is more common among selective schools that turn down most of their applicants.

In a 2019 survey by the National Association for College Admission Counseling, 24.6% of schools said race had a “considerable” or “moderate” influence on admissions, while more than half reported that race played no role whatsoever.

Nine states have banned the use of race in admissions policies: Arizona, California, Florida, Idaho, Michigan, Nebraska, New Hampshire, Oklahoma and Washington.

WHAT IS THE CURRENT LITIGATION ABOUT?

The court is weighing two cases brought by Students for Fair Admissions, a group helmed by Edward Blum, a conservative legal strategist who has spent years fighting affirmative action.

One case contends that Harvard’s admissions policy discriminates against Asian American applicants. The other asserts that the University of North Carolina discriminates against Asian American and white applicants.

The schools reject those claims. They say race is determinative in only a small number of cases and that barring the practice would result in a significant drop in the number of minority students on campus.

The court’s conservative justices, who hold a 6-3 majority, expressed skepticism about the role of race in admissions during oral arguments in October, and most legal analysts expect the court to rule against the schools. The rulings are due by the end of June.

HOW HAS THE SUPREME COURT RULED IN THE PAST?

The court has largely upheld race-conscious admissions for decades, though not without limits.

A divided Supreme Court took up the issue in the landmark 1978 case Regents of the University of California v. Bakke, after schools began using affirmative action in response to the Civil Rights era to correct the effects of segregation.

The swing judge, Justice Lewis Powell, ruled that schools could not use affirmative action to rectify the effects of past racial discrimination and struck down the university’s practice of setting aside a certain number of spots for minorities.

Nevertheless, he found that increasing campus diversity was a “compelling interest” because students of all races – not just minorities – would receive a better education if exposed to different viewpoints. He ruled that schools could weigh race in admission, as long as it remained only one factor among many.

In 2003, the court struck down the University of Michigan’s use of a system that awarded “points” to minority applicants as going too far, but affirmed Bakke’s central finding that schools can use race as one of several admission factors.

The court again upheld the practice in a pair of 2016 cases challenging the University of Texas admissions policies.

WHAT ARE THE POSSIBLE OUTCOMES?

The court could choose to maintain the current system, eliminate race-conscious admissions altogether or settle on something in between, such as more stringent limits on the practice.

A decision banning affirmative action would force elite colleges to revamp their policies and search for new ways to ensure diversity. Many schools say other measures will not be as effective, resulting in fewer minority students.

In briefs filed with the court, the University of California and the University of Michigan – top public school systems from states that have outlawed race-conscious admissions – said they have spent hundreds of millions of dollars on alternative programs intended to improve diversity, but that those efforts have fallen far short of their goals.