U.S. Supreme Court affirmative action ban already playing out in Michigan

• The U.S. Supreme Court struck down affirmative action Thursday, ending the use of race as a factor in college admission 
• Michigan banned affirmative action in 2006, making it difficult for selective schools like U-M to build diverse student bodies 
• Conservatives hailed the ruling, saying merit, not race, should guide admission decisions  

U.S. colleges and universities are banned from using race as a consideration in admissions decisions, the U.S. Supreme Court ruled Thursday, a prohibition Michigan had already placed on its public universities since 2006. 

The court’s six conservative justices put an emphatic, if unsurprising, end to decades of affirmative action practices that have helped raise the profile of Black and Hispanic students on American college campuses — particularly at the nation’s most elite schools — but has been mired in controversy for much of that time, with critics contending that racial preferences, even when used for good motives, amount to another form of discrimination. 

Thursday’s ruling will likely mean fewer Black and Hispanic students and a higher percentage of white and Asian American students on college campuses, at least at the nation’s more selective schools. 

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Stacy Hawkins, a law professor at Rutgers University who teaches constitutional and employment law, told Bridge Michigan on Thursday the decision means that “direct consideration of race” can no longer be part of an admissions process.

“Colleges and universities usually require students to identify their race and ethnicity by checking a box indicating which race and ethnicity they are. That information, while it may still be collected, may not be used as part of the admissions process anymore,” she said. 

The ruling was generally hailed by conservatives and denounced by progressives, matching the ideological divide on the country’s highest court. 

Chief Justice John Roberts wrote the majority ruling, striking down policies at Harvard University and the University of North Carolina that relied in part on race.  

“The student must be treated based on his or her experiences as an individual — not on the basis of race,” Roberts wrote. “Many universities have for too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice.”

Roberts’ opinion, joined by justices Samuel Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, found that the schools’ admissions policies lacked “sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.” 

But, he added, “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise” in an application essay, for example. 

Justice Sonia Sotomayor, speaking for the court’s dissenting liberal justices, said the majority’s opinion erects a critical barrier to “achieving racial equity in our nation.” Sotomayor, the first Hispanic justice on the high court, has noted in her own life how affirmative action helped open the door to the nation’s top schools. “Ignoring racial inequality,” she said from the bench Thursday, “will not make it disappear.” 

Students for Fair Admissions, a nonprofit that advances litigation to remove race and ethnicity from college admission decisions, filed the legal challenges against Harvard and UNC. Notably, as Justice Thomas pointed out in his concurring opinion, the ruling effectively struck down the high court’s 2003 decision in a case involving the University of Michigan Law School. 

In that case, a white applicant to the law school sued after she was denied admission. In a 5-4 ruling delivered by then-Justice Sandra Day O’Connor, the court ruled that race can be used as a narrowly tailored factor in admissions as one way to help foster a diverse student community. The court concluded that such admissions practices do not violate the Equal Protection Clause of the Fourteenth Amendment. 

Two decades later, the Roberts’ majority reached a different outcome, ruling that race-conscious admissions — “however well intentioned and implemented in good faith” — does indeed violate that clause.

Public universities in Michigan are already barred from using race conscious admissions because of a voter approved constitutional amendment from 2006. (That prohibition also made its way to the Supreme Court, but the court upheld the ban as constitutional.)

It had a significant impact. Black students made up 6 percent of the Ann Arbor campus’ incoming (non-international) freshman class in 2006. By 2021, 4.5 percent of U-M freshmen were Black.  

Over that same period, the percentage of students of Asian descent in the U-M freshman class rose from 11.5 to 19.4 percent.

Evan Caminker, a U-M law professor who helped represent the university in previous affirmative action cases, said there has already been a lot to learn about what happens to campus populations when states, like California and Michigan, banned affirmative action. 

“I think it's easily predictable that fewer students of color will get into the most selective universities,” Caminker told Bridge. “That's part of the defense that Harvard was giving to its policy and obviously was not listened to in this context.”

The University of Michigan submitted a friend-of-the-court brief to the Supreme Court in the Harvard and UNC cases, explaining its own experience with race neutral admissions as both an “experiment” and “cautionary tale.” 

In it, the university noted its many efforts to build a diverse class including scholarship programs and changes to recruitment efforts. But the university said many of its schools and colleges have nevertheless experienced a “substantial drop” in racial and ethnic diversity since state voters passed the 2006 ban. 

“There will be a lot of people saying, ‘OK now we have to move on, and everybody just has to work harder,’” Caminker said. 

“And I think that does a disservice to the experience of schools like Michigan and in California, where universities have worked harder and harder and harder, and still have not been able to reproduce the level of racial diversity that we had before the ban on affirmative action.” 

Many schools will not be impacted 

Thursday’s decision is going to be “most acutely felt at the top of the higher education hierarchy,” said Hawkins, of Rutgers, who noted “the vast majority of colleges and universities either have no consideration of race or minimal consideration of race in their admissions processes because most colleges and universities are not highly selective.” 

Indeed, diversity numbers did not change significantly at several Michigan public universities after the state’s affirmative action ban.

For example, Eastern Michigan University had 24.6 percent Black incoming freshman students in 2006 and 25.3 percent in 2021, federal education data shows. Michigan State University’s Black incoming freshman students actually rose slightly, from 5.8 percent in 2006 to 6.5 percent in 2021.

Michigan’s private colleges were not impacted by the state’s 2006 voter ban, but under Thursday’s ruling they too are now banned from using race as a factor in admissions decisions.  

Colby Cesaro, vice president of the Michigan Independent Colleges and Universities association, which represents the state’s private colleges, said the organization would not be commenting on the ruling.

Ryan Fewins-Bliss, the executive director of the Michigan College Access Network, which works to expand students’ access to college, particularly low-income, first-generation college students and students of color, called the decision a setback. 

“Today’s Supreme Court decision striking down race-conscious admissions creates an additional barrier to achieving equitable college access and success across the country,” Fewins-Bliss said. “This setback will exacerbate the existing inequities that lead to an underrepresentation of Black, Latino and Indigenous students enrolling in and completing postsecondary education.” 

Two Republican congressmen in Michigan hailed Thursday’s ruling as rewarding meritocracy. 

“This decision by the Supreme Court ensures students will compete on merit,” Rep. Bill Huizenga tweeted Thursday afternoon. “No American should be denied educational opportunities based on race. A quality education can serve as an incredible equalizer and all Americans should have an equal opportunity to attain one.”

Rep. Tim Walberg tweeted Thursday morning that “no student should be judged by their skin color.”

Kristine Bowman, professor of law and education policy at Michigan State University, said the court’s findings reflect two very different understandings of race and legacy of racism in the country.

She said Roberts’ majority opinion focuses on the idea that laws should be colorblind and “distinctions on the basis of race are harmful in and of themselves.” Meanwhile, the dissent is saying that “racial subordination is the harm.”  

The Court has had this division for a long time, Bowman said. 

In her dissent, Justice Sotomayor portrayed the majority as out of touch with the ongoing inequalities ingrained in the nation.  

“Entrenched racial inequality remains a reality today,” Sotomayor wrote. “That is true for society writ large and, more specifically, for Harvard and the University of North Carolina (UNC), two institutions with a long history of racial exclusion. Ignoring race will not equalize a society that is racially unequal. What was true in the 1860s, and again in 1954, is true today: Equality requires acknowledgment of inequality. “

John E. Johnson, Jr., executive director of the Michigan Department of Civil Rights, said the ruling “trivializes the reality that much of the progress made over the last 60 years was due to programs that directly addressed our racial legacy. This ruling will damage the intellectual growth of future generations by robbing universities of the ability to guarantee an environment of robust diversity.”

What now? 

Justice Roberts noted in his ruling that prospective students can still write — and admissions offices can still consider — how race has impacted their lives, perhaps leaving an avenue open for racial considerations in application essays. 

University administrators will undoubtedly analyze the ruling for ways to abide by the Supreme Court decision while preserving inclusive admissions policies. 

They might start with a look at Texas. Two decades ago, an appeals court decision banned affirmative action in the University of Texas system, which quickly reversed gains in diversifying its campuses. Texas lawmakers hit upon a racially neutral alternative to affirmative action, which it called The Top Ten Percent Plan. 

Under the plan, Texas students who graduate in the top 10 percent of their high school class gain automatic admission to state universities. As The Texas Tribune noted, this allowed universities to exploit racial and ethnic segregation in different parts of the state and admit diverse students without specifically relying on race to do so. 

Earlier this year, a report by Georgetown University’s Center on Education and the Workforce analyzed six simulations of admissions programs, including four models that do not factor race into admissions and two models that assume all colleges factor race. 

“None of four models we tested that ignored race/ethnicity as a factor in admissions came close to achieving the levels of racial/ethnic diversity that could be realized if all selective colleges considered this information in their admissions decisions,” the report said.

U-M President Santa Ono said in a statement Thursday that, even though U-M is not directly impacted by the ruling, he was “deeply disheartened” by it.

The university’s own experience shows “it is much more difficult to achieve racial diversity in the student body using only race-neutral methods than by including race in the admissions process in a narrowly-tailored manner,” he wrote.