1.18: Admissions, Affirmative Action, and SCOTUS

Alex Usher (AU): Zach, among the many ways that higher education in the US differs from higher education everywhere else, is the degree to which policies are decided by lawsuits. One of the biggest and best known such lawsuits was one that was an affirmative action case in admissions the 1978 Regents versus Bakke case. And I think that was a five-four decision in which the swing judge basically said encouraging diversity was permissible only if it could should be shown to have an educational value to the rest of the student body. I think by implication that meant to white people. Tell us how did Bakke shape the way American institutions handle admissions have handled admissions over the past 45 years?

Zach Bleemer (ZB): It’s worth emphasizing that prior to the early 1960s, public universities in the US were relatively open access. If you graduated high school in a state with sufficiently high grades to be qualified for a university, then you could get into roughly whatever state university you wanted to in that state. It was only when university selectivity became necessitated by really substantially growing demand for university education that universities on the one hand started using things like standardized tests and grades to admit students into public universities, and then at the same time implemented affirmative action policies targeting students on the basis of race and class in hopes of making sure that public universities still looked relatively representative of the states that funded them. The Bakke case was the first limitation on what states were allowed to do in providing these admissions advantages to Black and Hispanic students. They had to be justified on the basis of this diversity criterion. I wouldn't say the diversity criterion was only for white students. I think there was a thought that Black students would also benefit by being at universities with large white populations. But this was the first sort of major justification that that nevertheless required states to be much more limited in how they used race and admissions. That's roughly been the law of the land since the court instituted this policy in the late 1970s.

AU: How did they react to that? How what did institutions have to do and what happened to minority enrollments?

ZB: The primary thing that occurred is that states were no longer allowed to use quota policies. Admitting, say 20% of the students only on the basis of race and the rest of the students using typical admissions measures. Instead, most public universities switched over to point-based systems where you were admitted if you were in the top 10% of applicants among some weighted average of SAT scores and grades and then you would get like a bonus 10 or 20 points if you were Black or Hispanic. Where private universities implemented holistic review policies where students were given scores on the basis of a variety of characteristics and reading academic information in the context that the kids came from. So, those policies were dominant in undergraduate admissions until the early 2000s.

AU: In the 1990s and early 2000s, we start to see policies at some institutions, sometimes I think driven by state legislators, to require flagship institutions to take the top 10% of any high school's graduating class. In theory, because they're segregated neighborhoods that are segregated by income and segregated by race. These approaches should have had some positive effect on minority access rates. But did they?

ZB: Yeah. And affirmative action policies are deeply unpopular in the American population. If you run surveys and just ask people “do you think that there should be racial preferences in undergraduate admissions?” roughly two thirds of people disagree. Including large shares of Black and Hispanic respondents to these surveys. So, starting in the mid 1990s, a combination of ballot measures and judicial decisions started eliminating the use of race-based preferences state by state. A total of 10 states have banned the use of affirmative action. Nine states currently banned the use of affirmative action and the primary replacement that these states have put into place, either coming from university administrators or coming from legislators (in some states, those sort of are the same bodies) have implemented these top percent policies. The idea is if you're in Texas in the top 10% of your high school class, your guaranteed admission to any Texas public university. That was true until the early 2010s. It's now a bit smaller at UT Austin, maybe the top 6 or 7% of kids are guaranteed admission to UT Austin. These policies were intended to broaden the geographic scope of university admissions with the thought that because there were many minority majority high schools that provided very few students to top universities in these states that allowing the top students to even those high schools to get into schools like UT Austin would be really impactful and would increase Black and Hispanic enrollment. These policies are much smaller than race-based affirmative action in terms of the number of Black and Hispanic students they enroll. So just to give a sense affirmative action increases Black and Hispanic enrollment by, on the order of 20% across university systems, 10% policies increase Black and Hispanic enrollment by more like 3 or 4%. So, this is a meaningful change and it has impacts other than just increasing Black and Hispanic enrollment, but it's not a replacement for affirmative action just in the simple metric of how many black and Hispanic students do these policies pull in.

AU: You mentioned that there had been some legal challenges also when you get into the ‘90s and 2000s. What are the other notable legal events since Bakke? What's been the evolution of the legal limitations on affirmative action since 1978?

ZB: At the national level, the primary limitation came from the Gratz and Grutter cases against the University of Michigan in the early 2000s which ruled out these point-based affirmative action systems that I mentioned a moment ago where you give 20 bonus points to Black and Hispanic students since that decision. Because point-based schemes have become illegal universities that want to implement affirmative action policies have to use a holistic review type policy where they just give general scores to students, not specific points on the basis of certain applicant characteristics, and then admit students on the basis of these general measures. I think the other sort of major national level case has been the Fisher cases in Texas in the mid 2010s. These cases didn't fundamentally change how universities could use race in admissions, though they surely made some universities rethink the role of affirmative action in admissions and were key runners up to the current case that's before the Supreme Court.

AU: Zach, earlier this year, two cases came to the Supreme Court on admissions. One was against the University of North Carolina and the other was at Harvard. Can you tell us who are the plaintiffs? What are the key issues at stake in these two cases, and does it make any difference that one of these schools is public and one is private?

ZB: These were both cases that were brought by groups of Asian students, supported by a non-profit organization based in Texas that claimed that these university's affirmative action policies discriminated against these Asian plaintiffs by providing admissions advantages to Black and Hispanic students that crowded out some Asian applicants. So, these were cases that were both decided in favor of the universities at the district and appeals court levels, but were brought to the Supreme Court and heard in the fall. They'll be decided at the end of this month. The primary difference between these cases and the Fisher cases in the mid 2010s, I think are twofold: First, as you mentioned these cases were brought against both private and public universities. They were consolidated at the Supreme Court level, and it's expected that there will be a similar decision made in both cases. Second, the Fisher case had a white plaintiff who claimed that an affirmative action discriminated against her, where these cases are being brought by Asian students, a minority group who may have, in the perception of the court's, greater standing under equal protection claims.

AU: What I find strange about these cases or this type of argument, and I see it in Europe as well, is the notion that your marks in high school or your SAT grade or your ACT, depending on what it is, are actually the correct version of merit and the holistic attempts to measure merit at a place like Harvard are necessarily discriminatory. When did Americans get to the point where they thought that tests were the only measure of merit that needed to be considered?

ZB: I think it's a really fantastic question and the question that applies to universities around the world. Private universities in the US started using standardized tests in the early 20th century with the idea of not just admitting rich students, but also admitting high performing students to join the student body along with the relatively wealthy students who were already enrolling at the selective privates that implemented tests. Tests and grades were hardly used in undergraduate admissions at public universities, as I mentioned, until the 1960s because prior to then for the most part, public universities were relatively open access. So, this is a relatively recent phenomenon at the public university systems that enroll more than three quarters of American undergraduate students. I agree that there's very little evidence base to suggest that tests are a good way in any sort of notion of good to admit students to public universities. So, a lot of the research that I've done on this question has focused on the question of value add or who is able to gain most from access to selective public universities? You might think that tests are a good way of measuring that because tests identify which students are most academically prepared or best able to take advantage then of the kinds of really difficult and high level academic resources that are provided by the most selective flagship public universities in the US. That's a theory. Maybe tests are a great way of identifying these students. But up until recent years, we've had no evidence that these tests do a good job and in fact, I think in recent years we've found evidence of exactly the contrary. Every time universities go out of their way to identify relatively low testing, but also low opportunities students through affirmative action or the top percent policies that we mentioned earlier, or other policies, every time universities implement those policies, it seems like the students who get pulled in by these alternative policies tend to receive actually greater gains from access to selective university enrollment than the typical students who are currently being admitted to those universities.

AU: So pretty much all the commentary I've seen on these cases suggests that the Supreme Court will rule in favor of the plaintiffs. Why do they think that and what do you think will happen?

ZB: My background is as an economist I'm not sure I have so much more insight than the public into how the Supreme Courts going into rule. I think the reason that news organizations and many others anticipate the Supreme Court will either radically limit or prohibit the use of race in undergraduate admissions is the primarily two factors. First that the court has changed pretty substantially since the most recent Fisher cases in the mid 2010s. I think three of the four justices who voted in favor of maintaining racial preferences in the mid 2010s are no longer in the court, and were replaced by relatively more conservative justices. I think there were also differences in the kinds of arguments that were made in this case. Justifications for affirmative action that may have played to relatively deafer ears against minority plaintiffs and a growing body of social science evidence that really just provides very little justification for the diversity criterion that we started this conversation with, the notion that there are measurable advantages to mixing students at age 18 and providing education in a diverse setting. I think social scientists have had a very difficult time finding direct evidence of either educational gains or even long run integration gains from the affirmative action policy experiment.

AU: There must be really huge potential implications here that obviously go well beyond Harvard and North Carolina. It'll affect institutions nationwide. Assuming the court rules in favor of the plaintiffs, what are the likeliest policy responses on the part of selective institutions and how does the whole test optional movement, which has gained strength over the last three or four years, how does that tie you into this?

ZB: I think there's really two parts to this question. The first is just to describe what happens when affirmative action bans are put into place. We now have pretty good evidence on that from the nine states that have previously banned affirmative action in undergraduate admissions. What it is is this pretty substantial cascade of Black and Hispanic students into less selective universities. So, large declines in net Black and Hispanic enrollment at state flagship institutions and other selective schools. Then, relative parody at mid selective universities because they're both losing students who are no longer being admitted to affirmative action policies, but gaining students from the more selective schools where those students can no longer get in. So, you have this cascade across the selectivity spectrum of universities that leads to pretty negative long run outcomes for Black and Hispanic students. Declines in aggregate degree attainment, in graduate degree attainment, and declines in earnings. What you have is like relatively fewer high earning young, Black and Hispanic Californians and Texans today than you would have had if affirmative action had been implemented when those kids were going to California and Texas and other universities in the late 90s and early 2000s. So, there are pretty substantial aggregate ramifications of ending affirmative action, particularly for the Black and Hispanic students who benefited from these policies.

Turning then to how states will respond. There is a really substantial interest, especially inside of public universities, to make sure that those public universities are roughly representative of the states that fund them. So, we're going to see states try all sorts of policies to try to maintain not maybe the current level of racial diversity at their flagship schools, but at least some semblance of racial diversity or absent race-based preferences. I expect we'll see the same at many highly selective private universities that enroll far fewer students are a much smaller player in the American higher education space, but that surely grab tremendous public attention as we think about higher education.

AU: You have written on race neutral alternatives to affirmative action in the UC system. Can you explain to our listeners what race neutral alternatives to affirmative action are? How successful have they been in promoting diversity and addressing inequalities and admission processes?

ZB: California is one state where university administrators had a really substantial interest in maintaining racial diversity, absent race-based preferences after the affirmative action ban was implemented in 1998. They implemented four primary policies to maintain diversity. The first was a large-scale outreach effort to minority majority high schools. The second was a top percent policy, as we've already discussed, that guaranteed admission to the top 4% of students of every high school to most University of California campuses. Their university campuses primarily switched from these old point-based admission schemes over to holistic review. Then in recent years, as you mentioned there has been this movement toward test optional admissions. Actually, in California, the University of California implemented test blind admissions prohibiting students from sending in test scores along with their applications. So, each of these policies does have the tendency toward increasing Black and Hispanic enrollment, though to a much lesser degree than race-based affirmative action. California's outreach programs probably increase Black and Hispanic enrollment by something like 1%. The top percent policy increased Black and Hispanic enrollment at implementing campuses by seven or 8% similar to holistic review, which also at implementing campuses increased Black and Hispanic enrollment by about seven or 8%. Test optional policies, the door is still open on the research side. The trouble is that the kinds of schools that were implementing test optional policies prior to Covid were quite unrepresentative of American higher education and then everyone implemented test optional policies during the Covid pandemic but measuring the impacts of those changes are difficult just because the Covid pandemic confounds the observable impact of those policies.

AU: That's the economist. Always about the lack of natural experiment.

ZB: It's very frustrating. There’s a number of active research projects trying to study this, but I think we really don't have a great sense. We know that ending the use of standardized tested admissions doesn't have a gigantic effect on Black and Hispanic enrollment. Otherwise, we would've seen it despite the pandemic. But we don't know whether it had no impact at all, or maybe a small change.

AU: You have also written about potential policy innovations in the race neutral admissions. Things that states and institutions could be doing but aren't yet. Are there any such areas you think are potentially promising, and how likely do you think they are to be implemented, say in the next five years?

ZB: This really comes back to the point you made earlier about the assumption that tests and grades and other measures of academic preparation are an appropriate way of allocating state educational resources. State flagship universities are a tremendously valuable resource that are, you have to be given to someone and the way that we currently hand them out, provide this gift to young people, is on the basis of high school performance and academic preparation. I suspect that this court case is going to make schools pretty substantially rethink the way that they're allocating this very valuable resource. In particular, it seems to be leading schools back to thinking about their missions often as stated in explicit mission statements or otherwise as understood by university administrators thinking about the relationship between their mission statements and their admissions policies and reforming admissions policies to better line up with what they see their universities is trying to do. That's going to vary a lot, most so between public and private universities. I think there's really a peculiarity in the US where despite the fact that admissions policies look very similar at public and private schools, the missions of public and private schools are very different from each other. And I think we're going to see admissions policies increasingly reflect that difference. Moreover, between private universities, you have Jesuit and Catholic universities, you have long-standing, very old elite private universities, and then large sets of schools that have very different intentions and missions. I expect that this court case is really going to motivate schools to think harder about which kinds of students they want to be able to admit at these institutions and how their current policies or potential future policies could reflect that.

AU: We're all out of time. Zach. Thanks for being on the show.

ZB: You bet. It was really good to talk to you, Alex.

AU: I know I'll be thinking about all of this when we get the Supreme Court decision later this month. It remains for me to thank Tiffany MacLennan and Sam Pufek, our excellent producers, and you the listener for tuning in.

There'll be no next week. We're off until September, but we will be back. We've had a lot of fun doing this show over the past few months. Now that we've got the kinks out, we look forward to putting together another 35 episodes of this show in 2023-24 highlighting higher education developments from all parts of the globe. If you have any suggestions, please send them to podcast@higheredstrategy.com. Bye for now.

*This podcast transcript was generated using an AI transcription service with limited editing. Please forgive any errors made through this service.