Statement From Dean Johnson About Supreme Court Affirmative Action Ruling
Dean Kevin R. Johnson released the below statement about the Supreme Court's ruling today regarding the use of race in college admissions:
The Supreme Court’s invalidation of the use of race in admissions programs of Harvard and the University of North Carolina will have a lasting impact on affirmative action and university admissions. It is another area of law in which the Roberts Court has brought monumental change with the proverbial stroke of a pen. The Court overruled well-established precedent that had been relied on for more than a generation by colleges and universities across the United States in crafting their admissions criteria and procedures.
With the end of race-conscious admissions, the coming years will likely see considerable review and change to admissions criteria and procedures. Those changes in turn will likely receive considerable public scrutiny. Race-conscious affirmative action for now is history. But, all is not lost for those colleges and universities truly dedicated to diversity. Nor should we surrender our hopes for a diverse student body if we truly believe in its importance to learning and equality.
The Decision
Lawyers and law professors will be parsing over the nuances of the Supreme Court’s decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College. In sum, Chief Justice Roberts, writing for the conservative majority, held that the admissions program’s consideration of race in admissions violated the Equal Protection Clause of the United States. Legal scholars no doubt will parse the majority and other opinions but it is clear that the use of race generally in admissions will be avoided given the strong language of the majority opinion.
A pressing question after the case will be how universities may act to ensure diversity in their student bodies.
The California Experience with the End of Race-Conscious Affirmative Action California’s Prop 209
Public colleges and universities in some states, including California, have not considered race in admissions for many years. In the wake of the Supreme Court’s latest pronouncement, colleges and universities across the nation can look to the experience of experiments in those states in planning for the color-blind, race neutral admissions future.
Passed by the California voters in 1996, Proposition 209 banned the consideration of race in admissions by public colleges and universities in the Golden State. The proposition provides that “[t]he state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”
In addition, the sustained threat to affirmative action had universities experimenting with alternatives to race-conscious affirmative action. The Texas 10% plan, which guaranteed the top 10% of every high school class admission to the top public universities in the state, is one well-known example. Other states passed similar measures.
Prop 209’s passage immediately sparked a search by California colleges and universities for ways other than the consideration of race in admissions to ensure diversity in college and university classrooms. The initial responses of colleges and universities to Prop 209 were subject to considerable public scrutiny, especially by the opponents of affirmative action. California schools were generally cautious in their immediate responses to Prop 209 and were wary of being sued for violating Prop 209’s ban on the consideration of race in admissions. Some might claim that the public colleges and universities in California were excessively cautious in their initial responses to Prop 209. Enrollment numbers of students of color dropped precipitously at California public universities in the beginning but rebounded in later years and now are at all-time highs. Admittedly demographic changes – namely an increase in students of color in the K-12 public schools – contributed to the increase. But some of the admission changes did as well. The University of California has improved over time and this year admitted its most diverse undergraduate class ever.
Revisiting of Admissions Criteria and Procedures
Some colleges and universities overhauled their admissions schemes. In that vein, some schools renewed their commitment to holistic review of applications for admission, not focusing exclusively on grades and test scores. Holistic review is time-consuming and resource intensive and slows down admission decisions. It also adds subjectivity to admissions decisions.
Since passage of Proposition 209, colleges and universities in California pursued aggressive recruitment efforts directed at students from disadvantaged backgrounds and from urban areas, which are rich in potential diverse applicants. Different schools responded to local conditions. UC Davis, for example, also actively recruits applicants from the Central Valley, an incredibly diverse part of the state.
The UC Davis Law admissions criteria do not consider race but some take steps designed to help ensure greater diversity. As the UC Davis Law website states to potential applicants:
"Our process allows for a personal statement that may discuss any of a variety of factors, including academic promise, background information and any discrepancies in GPA and/or LSAT score and/or GRE score; growth, maturity and commitment to law study as evidenced, for example, by extracurricular activities, community service, employment experience and advanced study; severe economic disadvantage or physical disability; other factors relating to diversity, including bilingual skills and unusual accomplishments, skills or abilities relevant to the legal profession. (emphasis added)."
Personal statements allow applicants to reveal and explain these kinds of considerations
Revisiting of Standardized Tests
Some proponents consider eliminating standardized tests from admissions decisions as one factor in having positive diversity consequences. The process of changing the weighing of such tests in admissions took years of discussion, debate, and deliberation. The University of California and some other universities no longer require standardized test scores for applicants.
Some have blamed the LSAT for contributing to the lack of diversity in law school student bodies. The American Bar Association (ABA) has not yet eliminated a standardized test requirement for law school admissions. However, the ABA has expanded the testing options for applicants to the GRE as well as the LSAT. That change to this point does not appear to have had a dramatic impact on the diversity of law school student bodies.
Pipeline Programs
Many schools have established pipeline programs designed to promote diverse applicants. The Law School Admissions Council (LSAC) has provided financial support for some of these pipeline programs.
In response to Prop 209, UC Davis School of Law created a pipeline program, the King Hall Outreach Program for first-generation college students and those from disadvantaged backgrounds. Our website discusses KHOP as follows:
"The California Legislature recently funded a new pipeline program. Cal LAW Pathways is a 2+2+3 program beginning in the community colleges and continuing to four year universities and law schools, which in California are much more economically and racially diverse than many universities and law schools."
Conclusion
Although many observers are disappointed by the UNC/Harvard decision, the end of race-conscious affirmative action should not end the efforts to diversify our universities and law schools. It should spark moving law schools, colleges, and universities to re-consider their admissions schemes, processes, and admissions criteria. The decision should not lead to the abandonment of our commitment to increasing students of color. Indeed, this is no less than an ideal moment for all of us to review our admissions, outreach, and procedures.