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Graduates line up for the University of Pennsylvania’s commencement ceremony in Philadelphia, May 15, 2023.
Chief Justice John Roberts, writing for the majority in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina, concluded that race-based affirmative action programs that favor Black and Latino students unfairly discriminate against white and Asian American applicants. Critics of the ruling fear that the end of affirmative action will erase the gains made in recent decades as Black and Latino student populations decline, particularly as some prospective students may fear that they are not welcome at elite institutions.
Fair Admissions was disappointing, but unsurprising. Kermit Roosevelt, a professor at the University of Pennsylvania’s Carey Law School, likened the trajectory of affirmative action decisions to the similar decisions on abortion rights. For decades, conservative legal theorists methodically worked to build a constitutional foundation for overturning Roe v. Wade. Conservative groups similarly pursued a 45-year-long strategy to overturn affirmative action. While high court watchers were prepared for the end of Roe, the decision shocked college students who were not prepared for the high court to go after a seemingly settled precedent like Roe that had been in place since long before they were born.
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By the time Fair Admissions came down on the last day of the Supreme Court term, however, young people understood just how conservative the current Court is. Those students who were tuned in to racial politics on their campuses had closely followed these cases and knew that the prospects for preserving affirmative action looked bleak when the conservative Court agreed to hear them in 2022.
The members of the University of Pennsylvania’s class of 2026 were admitted under the pre-Fair Admissions policies then in place: Nearly 60 percent of the new students identified as students of color, with 25 percent of those students coming from “races and ethnicities historically underrepresented in higher education.” In the 2020-2021 academic year, roughly 50 percent of students received need-based financial aid to defray about $80,000 in tuition and fees. A joint statement issued after the Court ruled by University of Pennsylvania President Liz Magill and Provost John L. Jackson Jr. noted that Penn is home to “the most vibrant and diverse community [that students] may ever know.”
Diversity of all kinds, but especially geographical and racial diversity, is part of what makes education at America’s elite colleges and universities a unique and highly sought-after experience. In one of my most memorable classes at the University of Pennsylvania, I learned about and discussed the history of 20th-century farmworker organizing in California alongside the daughter of Mexican immigrants who work in agriculture. Future classes of students may learn the same material, but they will miss out on these vital perspectives if their classes are predominantly white.
Diversity of all kinds is part of what makes education at America’s elite colleges and universities a unique and highly sought-after experience.
Ayman Alwaqzah, a rising sophomore at the University of Pennsylvania, says that while he is sympathetic to the plaintiffs’ claims of discrimination against Asian American applicants, he worries that Black and Latino students may be reluctant to apply to elite universities like Penn, because they assume they will not get in or because they do not want to attend a school where there will be few other students of color.
Affirmative action, of course, is not a perfect solution. Elite private and public universities have historically discriminated against students of color and, in some cases, remain hostile environments. “I kind of always saw affirmative action as a bandage to a problem,” says Alwaqzah, who noted that even earlier rulings supporting affirmative action viewed it as a temporary solution.
His fears are well-founded. In 1996, a California referendum ended affirmative action in the state’s public university system. Black and Latino admissions at both UCLA and the University of California, Berkeley dropped by 40 percent in 1998, the year the law went into effect. California public universities tried to diversify their student body despite the ban on affirmative action, but these schools never matched their pre-referendum Black and Latino enrollment levels. Roosevelt, the Penn professor, expects to see a similar trend nationwide in the wake of the Supreme Court ruling.
The high court allowed one avenue for colleges to consider race. An applicant can explore these ideas in an application essay. Lawrence Bacow, who stepped down as Harvard’s president at the end of June, indicated that “an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise,” is one way that the university can continue to consider race and recruit a diverse student body while still complying with the law. Selective institutions like Penn that can afford to invest more resources in reviewing applications will begin to put greater emphasis on the essays in a student’s application. Many of these schools require applicants to submit a 650-word personal essay on a topic of their choice and multiple shorter supplemental essays, usually on more specific topics. “You can’t have a box that you check now that says what your race is,” says Roosevelt. “But they’ll invite students to discuss their experience of American life, and then a lot of students will write about race.”
Lucía Yletzara González, a rising senior at the University of Pennsylvania, mentors primarily low-income and Latino students at her high school in Santa Ana, California, who are applying to Ivy League schools and other elite colleges and universities. González has always advised applicants to use their application essay to write explicitly about the education and enrichment opportunities and resources that they lack compared to wealthier applicants from well-resourced schools and backgrounds.
But even this option places an additional burden on low-income and first-generation students of color. Many high school students, especially those who haven’t followed these issues closely or are the first in their family to go to college, are unlikely to know how important it is for them to discuss their experiences with race in their essays. Others are left wondering, “If I talk about race, will that be counted against me? Or depending on the college, if I talk about my race or my personal circumstances, will they actually try to equalize the playing field and admit students like me?” González says.
In his concurring opinion, Justice Clarence Thomas cited the colorblind nature of the Constitution as his reason for voting with the majority. This point of view ignores the fact that González’s mentees lack the tools that many wealthier students have taken advantage of when they apply to elite universities, such as private tutoring and test preparation courses.
“Fifty years ago, we could not attend the same schools as white people,” González says. “It’s very frustrating because affirmative action to me is the bare minimum to address literal centuries of systemic oppression.”
