Here’s what the Supreme Court’s affirmative action decision means for California schools | Opinion

The Supreme Court’s decision in Students for Fair Admission v. President and Trustees of Harvard College will have an enormous impact on admissions decisions in colleges and universities. The court clearly held that both public and private schools cannot use race as a factor in admissions decisions to benefit individuals of color or enhance diversity.

This will not change anything for public schools in California for whom affirmative action was eliminated in 1996 by Proposition 209. But it will matter for private schools in this state and for schools in most other states where affirmative action had not been previously been eliminated.

Much remains uncertain, however, about the broader implications of the Supreme Court’s decision. Quite crucially, the court held that colleges and universities cannot give preference based on race, but it did not keep them from pursuing diversity through race-neutral means, nor did the court’s majority opinion say that institutions must be “colorblind.” Though Justice Clarence Thomas argued for this in his concurring opinion, it was not part of Chief Justice John Roberts’ majority opinion.

Nothing in the court’s opinion precludes colleges and universities from engaging in outreach to encourage diverse students to apply or to enroll once accepted. Enhancing the pipeline of qualified students of color is imperative. The admissions process for schools involves three major steps: encouraging students to apply, admissions decisions and persuading admitted students to attend. The court’s decision focuses on the middle step, but does not speak to targeted outreach or recruitment.

Additionally, Roberts suggested that there were ways in which colleges and universities may continue to consider race. In a very important passage near the end of this opinion, he wrote: “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration or otherwise.” But this seems a difficult distinction. No preference may be given based on race, but race may be used as a positive if it’s related to overcoming adversity.

“A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination,” Roberts wrote.

It’s unclear what this will mean in practice. A college or university cannot give a preference based on race, but it can take into account how a particular student overcame racial discrimination or how their race has served as an inspiration. This seems a difficult line to draw, both for schools in their admissions decisions and, ultimately, for the courts when there are legal challenges to resolve.

It’s also unclear if colleges and universities can use race-neutral proxies to achieve diversity. For example, the University of Texas created a program of accepting the top 10% of high schools in the state, yielding some degree of diversity. Is this permissible because it does not speak of race at all? Or is this unconstitutional because it is done with the purpose of benefiting people of color and it achieves that effect? Nothing in the opinion precludes schools from giving preferences on other grounds, such as a student’s socio-economic status or if they are the first in their family to go to college.

Opponents of affirmative action are making broad claims about what the court decided, but it is important to focus on just what the court’s decision does and does not do. Schools must comply with the court’s holding, but my hope is that public and private schools and universities will continue to pursue diversity and look for ways to achieve it that are not ruled out by the court’s decision. The education of all students is enhanced by a diverse classroom and campus.