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What is affirmative action? Policy explained in simple terms

The Supreme Court ruled the policy unconstitutional on June 29.
/ Source: TODAY

News of the Supreme Court ruling that affirmative action in higher education is unconstitutional has catapulted the policy that was legal for at least 45 years to the forefront.

The court considered two affirmative action cases, one against Harvard University and the other against the University of North Carolina, and announced its 6-3 and 6-2 rulings, respectively, on June 29. The decisions bar public and private universities from considering race as one of many factors during the admission process, but only the most selective universities are expected to be affected.

Critics have characterized the rulings as cherry picking which types of preference-based admissions to crack down on, while supporters praised the court for putting "an end to this egregious violation of civil and constitutional rights," former Vice President Mike Pence tweeted.

Osamudia James, a law professor at the University of North Carolina who specializes in education law and civil rights, explains to exactly what affirmative action is — and breaks down the legal arguments for the June 29 rulings.

What is affirmative action?

James defined what affirmative action is in its most basic form.

"(It) is a policy that encourages state institutions to take affirmative action to make sure their processes are fair," she explains.

Previous to Thursday’s rulings, the Supreme Court ruled in favor of the use of race in college admissions, dating back to 1978, 2003 and 2016. James says deviating from these previous rulings indicates different interpretations of the law.

“Some of our debate is about whether we’ve properly understood what the 14th Amendment prohibits and what it allows,” she says.

She says affirmative action is intended to reverse historical exclusion and promote diversity and inclusion.

"There are a lot of ways in which our traditional admissions criteria exclude people who are not the most privileged in our society," she says.

The main part of college applications is a student's academic record, standardized test scores and extracurricular activities. For more information, most admissions processes take into account race and other forms of diversity, such as gender, socioeconomic background, geographic location, whether a family member attended the institution, if a wealthy donor cosigned an application, nationality and the type of high school an applicant attended.

"I do think there are ways in which universities in particular go out of their way to make sure some groups are well represented," she explains when asked about these other forms of diversity used in college admissions. She says "historically, it's been white women" to whom affirmative action has "been the greatest benefit."

All together, these data points impact an applicant's candidacy. But only race was at the center of Thursday's rulings because of a clause in the Constitution, James says.

"The issue here is that our Constitution has an equal protection amendment that insists that people not be discriminated on the basis of race," she says. "There is nothing in the Constitution about legacy status, or even class."

"Class has been brought up to the Supreme Court as something we should think about (in) the same way we think about race, and the court rejected that," she says.

What schools are affected by the Supreme Court's decision on affirmative action?

Affirmative action policies are primarily used by universities with more selective admission processes as a way to guarantee that their student bodies are racially diverse. James says these schools will likely feel an outsized impact of the rulings.

“The more selective institutions are going to be impacted most because they’re more likely to employ criteria that have a disparate negative impact on minority groups,” she says.

Institutions with selective admissions accept 50% of all applications at most, according to NBC News. The smaller the acceptance rate, such as 5% or 15%, the more selective the college is considered.

Selective colleges and universities make up a small number of all institutions. Pew Research Center reviewed more than 1,300 colleges and universities in 2019 and found that 17 admitted fewer than 10% of all applicants in 2017. The 17 included Harvard, Yale University and Northwestern University. Another 29, such as Georgetown and the University of Southern California, admitted between 10% and 20%.

Brown University had an acceptance rate of 5% for the 2022-23 application cycle, according to the Brown Daily Herald, and its president, Christina H. Paxson, said in a letter posted to the university's website on June 29 that Brown is “firmly committed to advancing the diversity that is central to achieving the highest standards of academic excellence and preparing our students to grow and lead in a complex world.”

"Today’s decision raises questions about how Brown and other institutions of higher education will continue to fulfill vitally important commitments to access and diversity," she wrote.

She did not disclose how the university would apply the rulings to its admissions process.

"Given the complexity and volume of the decision, it is too soon to say with certainty or specificity how the court’s decision might affect Brown. Like other colleges and universities, we have begun immediately conducting a thorough legal review of the 237-page opinions in the two cases. This will take time."

Can colleges still consider race in admissions?

James says that colleges and universities with admission processes "that look anything like UNC or Harvard" will have to adjust so it's in compliance with the rulings.

"Most of them are going to have to go back to the drawing board and think about how they eliminate any reference or consideration of race," she says. "This is, of course, impossible to do."

The difficulty, she says, is that the court's rulings permit applicants to discuss race while prohibiting schools from using it as a determining factor.

"The court itself suggested that applicants can still talk about how race impacted them as people, and then the university can still consider that. And so unfortunately, I believe this will only open the door for more litigation. We will be continually asking universities to justify the admission of Black and brown people, and to tell us whether you only considered the applicants' invocation of race, or whether you actually thought, 'Hey, this is a person of color and there's something here I should be thinking about,'" James explains.

"It's not clear to me how we move forward," she says, adding that one thing, however, is clear to her.

"Admissions of minority applicants, and Black and Latino applicants in particular, are probably going to take a dive, both because universities are not properly considering race, but also because applicants will think 'Those are not places I want to be.'"