Equity & Diversity Explainer

What Is Affirmative Action? How a Supreme Court Decision Could Impact K-12 Schools

By Ileana Najarro, Eesha Pendharkar & Mark Walsh — June 20, 2023 1 min read
Activists demonstrate as the Supreme Court hears oral arguments on a pair of cases that could decide the future of affirmative action in college admissions, in Washington, Oct. 31, 2022. As the Supreme Court decides the fate of affirmative action, most Americans say the court should allow consideration of race as part of the admissions process, yet few believe students' race should play a significant role in decisions.
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The U.S. Supreme Court is likely preparing landmark decisions in cases around the future of considering race in school admissions policies. The cases are the Students for Fair Admissions v. University of North Carolina and Students for Fair Admissions v. President and Fellows of Harvard College.

Education Week spoke with experts on what is affirmative action, how affirmative action has worked until now, and what is at stake—including for K-12 schools.

What is affirmative action?
Affirmative action, in the context of Supreme Court cases, is the consideration of race when admissions offices are reviewing student applications.

It is, however, a minimum standard, as a relatively small share of African Americans, Latinos, Indigenous people, and others who are racial/ethnic minorities actually go to selective colleges, according to Anthony Carnevale, director and research professor at the Georgetown University Center on Education and the Workforce.
How does affirmative action work?
Through affirmative action, race can sometimes be the tipping factor for whether to admit a given student when looking at students who are all very qualified for an institution, but there are a limited number of spots to fill.

Specifically, and often in more highly selective institutions, multiple factors are considered when students apply to college, including students’ academic achievement, extracurricular activities, essays, and recommendations. Then sometimes, on the margin, when admissions officers are trying to decide which students to admit, they take into consideration the diversity of the class that they're hoping to build and the diversity of the campus that they're trying to achieve, said Katharine Meyer, a fellow in the Brown Center on Education Policy and Governance Studies at the Brookings Institution. And one element of that is racial diversity.

More broadly, affirmative action is a policy that provides equity because not all schools are equal and not all students come from the same income level or have the same opportunities, said Carolyn Stone, a professor of leadership, school counseling and sport management at the University of North Florida.

“Affirmative action has helped out some of our students who had those incredible experiences and muscles that you can't test on an SAT,” Stone said. “And they've been able to bring that diversity, that experience, and that knowledge to a learning environment that matches the country in which we're living. So affirmative action is good for a country that is more and more diverse.”
What has been the result of affirmative action policies in higher education?
The legal justification for affirmative action is that diversity makes for good education.

Specifically, that diversity benefits the majority of beneficiaries of elite education and selective colleges, who are white people who can get the experiences they need to govern a diverse society, or as CEOs in corporations where diversity matters, Carnevale with Georgetown said.

When California voters supported a ballot initiative to ban the use of race in admissions in its public universities, enrollment of Black and brown students dropped precipitously, said Sarah Hinger, senior staff attorney in the Racial Justice Program at the American Civil Liberties Union. It took a long time and a lot of effort for the schools to endeavor to recruit and bring back the involvement of those students.

“Affirmative action hasn't cured inequities in education, but it has been an important tool in an effort to at least partially recognize the substantial inequities that exist and that people are positioned with when applying to colleges, and on college campuses,” Hinger said.

For students of color, it can help ensure that they aren't in an insular or token position on college campuses, because that allows them to be able to learn, express themselves, and explore their ideas freely as an individual and not feel the burden of being expected to represent their race, she said.
How does affirmative action impact K-12?
The latest ruling out of the Supreme Court could apply to any selective admissions process, whether it is at the undergraduate level, the graduate level, or the high school level, especially in the case of selective schools with magnet or gifted and talented programs, according to Meyer with the Brookings Institution.

In briefs filed by several K-12 groups supporting affirmative action in the elementary and secondary education contexts, one argument said that ruling against affirmative action would only increase efforts to limit books about and discussions of race in the K-12 classrooms.

Affirmative action as currently allowed encourages students to believe that college is a viable option, regardless of where they're coming from, said Hinger with the ACLU. It also encourages students to know that they have people of their race, or those from a similar background, who have walked this path before, partially due to affirmative action.

“Affirmative action is important to counteract the inequities in K-12 education. We know that K-12 schools are increasingly separated by both race and socioeconomics,” Hinger said.

For instance, Black students are more likely to attend more segregated, less affluent schools, Hinger said.
What was the first affirmative action case of the Supreme Court?

The 1978 Regents of the University of California v. Bakke decision rejected racial quotas in student admissions but allowed for some consideration of race to promote diversity in higher education.

What was the Supreme Court case on affirmative action in 2003?

In 2003, the Supreme Court decided on the consideration of race in college admissions in the cases of Grutter v. Bollinger and Gratz v. Bollinger.

The court ruled 5-4 in Grutter that educational diversity is a compelling governmental interest that justified the University of Michigan law school’s consideration of race in seeking a “critical mass” of underrepresented minority students. But the court held 6-3 in Gratz that Michigan’s undergraduate system of awarding points toward admission to minority applicants violated the 14th Amendment’s guarantee of equal protection of the law.

"The court clarified that the use of race and considering an applicant needs to be narrowly tailored and a part of a holistic review of that individual student and has to be part of a more careful contextual evaluation,” said Hinger with the ACLU.

What was the Supreme Court case on affirmative action in 2016?
Fisher v. University of Texas at Austin was an unsuccessful attempt to overrule the 2003 Grutter decision. As then-Justice Anthony M. Kennedy wrote for a 4-3 majority that “considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.”
What are the main arguments against affirmative action?
The challengers argue that Harvard's admissions policies discriminate against Asian-American applicants and that UNC has failed to try race-neutral policies that could achieve its diversity goals.

They argue that the Grutter decision was "grievously wrong" from the start and has resulted in colleges using "winks, nods, and disguises" in their admissions policies.
What cases will the Supreme Court decide on this term?
The U.S. Supreme Court heard arguments last fall, in the University of North Carolina and Harvard cases.

The court’s conservative majority signaled its skepticism of race-conscious college admissions policies, but the justices seemed hesitant to issue a sweeping ruling barring all consideration of race in education.

The court might say that higher education institutions must think more about class when it comes to diversifying higher education, said Carnevale with Georgetown. But that in itself brings forth a lot of questions, especially in terms of any intersections between race and class.
When is the Supreme Court's decision on affirmative action expected?
The decisions on the two latest cases are expected sometime in June.


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