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Why the Harvard admissions decision should be a call to action

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Colleges and admissions officers at elite colleges are sighing with relief after a long-awaited decision from a federal court in Boston upheld the constitutionality of the Harvard admissions process that considers race among a wide array of factors.

Given the enduring influence of race in American society, we may always need selective higher education institutions to consider race as one factor in admissions to ensure that entering classes fully reflect the nation’s diversity. Yet the ruling is not the reprieve many think it is, and should instead be a call to action for those committed to equal educational opportunity.

The significantly lower rate at which African American and Hispanic students apply to elite colleges reflect enduring educational opportunity and achievement gaps. It should come as no surprise that the Harvard trial revealed that African American and Hispanic students represented only 20 percent of the applicant pool even though they make up more than 30 percent of the U.S. population.

Too often our nation relegates these students to schools that are racially isolated with less qualified and less experienced teachers, less access to Advanced Placement and other rigorous courses, and substandard facilities. A 2018 report from the Education Trust reveals that the districts serving the highest percentages of minority students receive about $1,800, or 13 percent less, per pupil than districts with the lowest percentages of students of color. These disparities compound across classrooms and schools to create separate and unequal schools.

Ending the educational opportunity gap is entirely within the hands of law and policymakers. Yet generation after generation, they do far too little to eliminate it. Nor does the public demand that this gap be closed. Our nation is long overdue for a robust dialogue about recognizing a federal right to education that would create a nationwide guarantee of equitable access to a high-quality education.  

The educational opportunity gap is one of the reasons that affirmative action remains necessary at most elite colleges. Unless our nation’s lawmakers and policymakers decide to close it by adopting a federal right to education or other comprehensive action, the educational opportunity gap will continue to hinder the life chances of those who would never dream of applying to Harvard or any other institution of higher education because their education never prepared them to do so.

Judge Allison Burroughs acknowledged, “more than one third of the admitted Hispanics and more than half of the admitted African Americans … would most likely not be admitted in the absence of Harvard’s race-conscious admissions process.” This fact foreshadows the drop in admissions for African Americans and Hispanics that will likely occur if affirmative action eventually ends. Enrollment for these groups dropped significantly at elite higher education institutions, along with the shifting of many underrepresented minority students to less selective colleges in states like Michigan and California, where affirmative action has been banned. 

Those committed to equal educational opportunity should focus on developing new approaches that would reduce such precipitous drops in enrollment for African Americans and Hispanics.

Even if they do not completely eliminate the need to consider race today, such approaches could help universities reduce their reliance on race and satisfy the Supreme Court’s requirement in the 2016 decision Fisher v. University of Texas that “race places no greater role than is necessary to meet its compelling interest.”

Ultimately, the fate of affirmative action is likely sealed. Despite Judge Burroughs’ decision to uphold the Harvard admissions process, the U.S. Supreme Court’s jurisprudence on affirmative action currently requires it to end. Indeed, Burroughs concluded by noting, “[i]t was always intended that affirmative action programs be limited in duration.” She then reminded us that the Court’s Grutter v. Bollinger opinion in 2003 noted its expectation that affirmative action should end within 25 years and that this goal “may need to change” given that “the effects of entrenched racism and unequal opportunity remain obvious.” 

Defenders of affirmative action should extend their call to action to include an end to unequal and inequitable educational opportunities. This call must grow louder, more consistent and more insistent to demand that we undertake comprehensive reforms that ultimately will reduce the decline in the number and proportion of African American and Hispanic graduates at selective institutions of higher education when the Supreme Court ultimately proclaims that affirmative action must come to an end. 

Far more is at stake in the Harvard decision than who has access to elite colleges. The future of our democracy depends on an educated citizenry. Our collective failure to ensure equal access to an excellent education can only deepen inequity and racial division. A collective rolling up of our sleeves to do the hard work that creating a just must follow any sighs of relief and equitable education system requires. 

Kimberly Jenkins Robinson is the Elizabeth D. and Richard A. Merrill Professor of Law at the University of Virginia School of Law and a Professor of Education at the Curry School of Education at the University of Virginia. She is the editor of the forthcoming book “A Federal Right to Education: Fundamental Questions for our Democracy” and co-editor with Professor Charles Ogletree Jr. of “The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity.”


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