Affirmative action is under threat. In recent months, opponents have won victory after victory in their decades-long fight. And if Brett Kavanaugh is confirmed, it will likely lead to the most conservative U.S. Supreme Court in decades, ready to strike down affirmative action as we know it today.
To understand what the end of race-based preferences could mean for colleges and universities across the country, you only need to look at California’s recent history.
In 1996, California voters enacted Proposition 209, which effectively eliminated state and local government affirmative action programs in education, contracting and public employment. No longer was “preferential treatment” based on race, sex, color, ethnicity or national origin allowed. And ever since, public colleges and universities have struggled to maintain racial and ethnic diversity.
In July, the Trump administration announced it is rolling back Obama-era guidelines that encouraged higher education institutions to consider race in their admissions. Though these are only guidelines, this change opens the door for race-neutral admissions and sends a clear signal to universities and colleges.
More importantly, the Kavanaugh nomination means a rightward shift in the land’s highest court is on the horizon. The Supreme Court has long played a critical role in the battle over affirmative action. In several cases, it has ruled that universities may consider race as a factor in admissions. Conservatives have argued that such programs can hurt white applicants.
Recently, the Justice Department filed a brief siding with a group of Asian-American students suing Harvard University over alleged “racial balancing” admissions practices. Harvard vehemently denies any wrongdoing in what could be the first affirmative action case heard by the Supreme Court under Trump.
But there are ways forward if affirmative action is struck down, and California serves as an illuminating example.
California State University and University of California campuses institutions guarantee admission to community college students, most of whom are low-income students of color, through a transfer program designed to increase access to bachelor degrees. Now, private institutions can also admit community college students through the program, thanks to a new agreement.
But there is more to be done.
The next governor can play a crucial role through appointments and policies and, with higher education leaders, will need to seek new ways to admit students of color if race-based admissions practices are not an option.