By: Abríel Williams
Disclaimer: The views expressed in this post are those of the author, and do not necessarily reflect views of the Journal, the William H. Bowen School of Law, or UA Little Rock.
While affirmative action in higher education institutions is not an absolute remedy against barriers historically enforced to prevent blacks from being educated, it remains the best step in the right direction. Race-conscious admissions policies are not purposed to give black students an unfair advantage solely based on their race. These policies serve a deeper purpose–a compelling interest– to increase the presence of minority students on campuses where, historically, they have been prevented from attending based on their race.
In a federal lawsuit against Harvard University, Students for Fair Admissions (SFFA), a nonprofit organization led by Edward Blum, allege that Harvard’s race-conscious admissions process is an attempt by the university to engage in “racial balancing” and is in violation of Title VI of the Civil Rights Act of 1964 (Title VI). Title VI prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance.
Lower courts hearing the case have held that Harvard’s policies survived strict scrutiny and were not unconstitutional, as they were narrowly tailored to the compelling interest of achieving diversity. Furthermore, lower courts found that Harvard’s admissions process considered race along with multiple types of diversity in the school’s holistic review of applicants, rather than as a definite and exclusive basis for admission.
The lawsuit has made its way to the Supreme Court after eight years of litigation and if the plaintiffs are successful they will have essentially overruled the decision in Grutter v. Bollinger where the Court held that considering race as a factor in admissions decisions for the purpose of achieving racial diversity did not violate the Constitution. This would negatively affect the population of diverse students at colleges and universities across the country. Schools will likely be moved to looking only at an applicant’s test score, as opposed to a holistic review of each applicant. Studies have shown that test scores alone are not necessarily indicative of an applicant’s aptitude, but are more of a reflection of the applicant’s parents’ income and level of education. In 2020, the U.S. poverty rate was 11.4%. Among non-Hispanic Whites, 8.2 % lived in poverty. The poverty rate for Asians was 8.1%. Hispanics had a poverty rate of 17%, while Black Americans had the highest poverty rate at 19.5%.
The lawsuit claims that Harvard’s race-conscious admissions policies have resulted in intentional discrimination against Asian Americans students. However, in Harvard’s Admitted Class of 2026, the demographics of students were 27.9% Asian American, 15.2% Black, and 12.6% Hispanic or Latino. In the United States, Asian Americans make up only 6.1% of the population, while Black Americans and Hispanic or Latino Americans make up 13.6% and 18.9% of the population, respectively.
Perhaps rather than seeking to invalidate affirmative action policies in higher education under the guise of providing for fair and equitable admissions processes, it would be more consequential to move toward eradicating legacy considerations for admission purposes. Between 2014 and 2019, Harvard’s acceptance rate was 6% with one-third of the accepted students being legacy admits. The practice of considering a student’s legacy status gives preference to students based on their family history with the institution. Additionally, legacy admits typically come from wealthy households with college-educated parents, and are afforded some familiarity with the university and its application process as a result of their parent’s alumni status. This insight coupled with the reality that legacy admits typically come from wealthy households with college-educated parents places these students in a better position to be admitted.
Rather than targeting practices that seemingly provide additional support to those that are already at an advantage, such as legacy admission, the SFFA aims to overturn policies implemented to assist disadvantaged groups. Some argue that our society has reached a point where racial discrimination ceases to be a problem and, therefore, affirmative action is no longer needed. However, that argument is inconsistent with the data. Institutions that implement legacy preferences give children of alumni a substantial advantage over their non-legacy counterparts–especially minority and first-generation students. Further assessment of comprehensive criteria is required, as studies show that Black and Hispanic or Latino Americans still lag behind in admissions.
About the author: Abríel Williams is a third-year law student at the William H. Bowen School of Law. She is a member of the Arkansas Journal of Social Change and Public Service and serves as the Part-Time Liaison for the Black Law Student Association.