A Compelling Interest

In 2015, the American Association of Colleges and Universities (AAC&U) joined an amicus brief in the US Supreme Court case Fisher v. University of Texas at Austin. The Court decided the case in 2016, ruling, in alignment with the brief, that colleges and universities have a compelling interest in advancing campus diversity as a necessary component of educational excellence. The findings in Fisher were consistent with more than four decades of Supreme Court decisions, from Regents of the University of California v. Bakke (1978) to Grutter v. Bollinger (2003), that have acknowledged the educational value of diversity and the state’s substantial interest in a diverse student body. Nevertheless, race-conscious admissions programs are once again being challenged as the Supreme Court takes up the question this term of whether efforts at Harvard University and the University of North Carolina (UNC) to create diverse campus communities constitute unlawful discrimination against certain groups of applicants. While the cases were heard separately in October, the primary issue before the court in both is whether to overrule Grutter and prohibit institutions of higher education from using race as a factor in the admissions process.

Nine states already prohibit race-based affirmative action at their public institutions of higher education. These bans have had a profound impact on the mission of the affected colleges and universities. The University of Michigan states in the amicus brief it filed in August 2022 that it has recorded “a marked and sustained drop especially among the most underrepresented groups, Black and Native American students, whose enrollment has fallen by 44% and 90%, respectively, since Proposal 2 was adopted” in 2006. Similarly, the University of California notes in its amicus brief that “comprehensive and holistic review . . . has not been sufficient to counteract the declines in diversity after Proposition 209” in 1996, with first-year admission rates for African American applicants “well below 1995 levels.” These statistics illustrate the overly optimistic sense exhibited by the Supreme Court in the Grutter decision around the United States’ projected progress toward racial equity and social justice, in which, writing for the majority, Justice Sandra Day O’Connor asserted that “race-conscious admissions policies must be limited in time” and “we expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest” in student body diversity.

Despite institutions’ continuing work to diversify their student populations, Black, Hispanic, Latinx, Native American, and Pacific Islander students are, according to a recent McKinsey and Company report, still underrepresented in higher education and have worse academic outcomes, measured by graduation rates. Outcomes for African American and Native American students saw essentially no progress from 2013 to 2020, and only 8 percent of higher education institutions in the United States have at least equitable student representation and ensure that students from minoritized groups graduate at the same rate as the general US undergraduate population. Under the circumstances, according to McKinsey, “current rates of change suggest that it would take approximately 70 years for all not-for-profit institutions to reflect underrepresented students fully in their incoming student population.”

The worst global pandemic in more than a century has only exacerbated the situation. For the fifth semester in a row, enrollment in higher education has declined, going from 17.1 million in the spring of 2020 to 15.9 million in the spring of 2022, according to the National Student Clearinghouse Research Center. Public four-year colleges and community colleges, which disproportionately serve low-income students, students of color, and older students, have experienced the largest drops—3.4 percent and 7.8 percent, respectively—with the greatest losses among African American and Latino males. Today, as with Fisher, AAC&U reaffirms the importance of diversity and equity as essential to fulfilling the democratic purposes of US higher education. Yet, the cases against Harvard and UNC, brought by the group Students for Fair Admissions, which claims that the Fourteenth Amendment requires a race-neutral approach to admissions, are being decided by a radically different Supreme Court than the one that presided over Fisher. The current court consists of justices embroiled in controversy over their alleged politicization, conflicts of interest, and failure to respect stare decisis—the legal doctrine under which past precedent is a major factor in informing present decisions.

Although Students for Fair Admissions lost in the lower courts in 2019 and 2021, the arguments of the defense involve an additional focus on admissions operations as essential to academic freedom, protected under the First Amendment. The brief supporting Harvard and UNC submitted in August 2022 by the American Council on Education and thirty-eight other higher education associations, including AAC&U, maintains that “academic freedom necessarily encompasses decisions about who to enroll at any given institution.” Moreover, prohibiting institutions from using race in admissions would discriminate against applicants based on their racial or ethnic background by chilling the expression of students and faculty writing their recommendations, “depriv[ing] a subset of applicants of the full benefit of holistic review: those for whom racial or ethnic identity plays a role in their life experiences, leadership skills, or potential campus contributions.” For instance, prospective students would be prevented from discussing how their “leadership in an [African Methodist Episcopal] church choir, work for a Black-owned business, or receipt of a scholarship or internship designed to increase minority representation in particular industries or fields of study” might contribute to the college community.

AAC&U’s mission of advancing the democratic purposes of higher education by promoting equity, innovation, and excellence in liberal education is grounded in the belief that excellence and equity are inextricably linked and that excellence in undergraduate education cannot be achieved without eradicating the systems and structures embedded within it that advantage some at the expense of others. A liberal education for the twenty-first century prepares students for work, citizenship, and life by giving them practice working in diverse teams and speaking across differences encompassing multiple categories, including age, ethnicity, race, religion, national origin, sexual orientation, gender identity and expression, physical ability and disability, and socioeconomic background. Higher education is itself a site of social justice, and to achieve the inclusive excellence championed by AAC&U, all colleges and universities must identify and respond to patterns of inequity that stratify this diverse student body. However, attempts to eliminate race-conscious admissions and recent laws proscribing the discussion of meritocracy as racist not only reflect but bolster the notion that a commitment to diversity, equity, and inclusion are somehow inconsistent with excellence. There is nothing race neutral about these legislative efforts, and those of us committed to inclusive excellence must remain vigilant in redressing the educational disparities and patterns of systemic disadvantage that have resulted from the historical and contemporary effects of racism.

Illustration by Lance Pettiford