With the approaching confirmation hearings for Judge Kavanaugh nomination to the Supreme Court and the Trump Administration’s plan to change Obama-era guidelines on the use of race in college admissions, it is worth examining whether there is a proper role for the use of race in determining who gets into college and, ultimately, professional school.
We need to realize that, despite Justice O’Connor’s dream of a quarter-century limit on the consideration of race in admissions, it is virtually impossible to eliminate the consideration of race in admissions in a society that has woven race into the fabric of our educational opportunities.
The consideration of Judge Kavanaugh must be given very serious review, and the Supreme Court must realize that the dream of a color-blind society remains distant. For more than 40 years, the Supreme Court has been grappling with the constitutionality of using race in admissions. Each time, the Court has recognized the need to consider race in admissions even as the opinions called for narrower tailoring and for seeking less restrictive means.
After avoiding a decision on the use of race in college admissions in DeFunis v. Odegaard (1974), the Supreme Court outlawed the use of numerical racial quotas in the University of California Board of Regents v. Bakke in 1978. In Bakke, the use of racial quotas was ruled unconstitutional, but the use of race was permitted as long as the appropriate scrutiny was applied and there were no less onerous means to accomplish educational equality. The Supreme Court tightened the parameters on the use of race in college and professional school admissions again in Grutter v. Bollinger (2003), Gratz v. Bollinger (2003), and Fisher v. Texas (2016). While the Supreme Court’s scrutiny became stricter and the proof of the necessity of using race became more restrictive in each case, the rulings did not eliminate the consideration of race in admissions.
Anyone who has been in higher education admissions over the last 40 years knows why colorblind admissions simply will not work in in a color-conscious society burdened by educational disadvantage due to a number of factors, of which race is the most prominent.
The facts are indisputable. The racial diversity of the U.S. population continues to grow, and the Census Bureau expects that people of color will make up the majority of the U.S. population by 2045. According to statistics compiled by the College Board, an increasing number of students of color lag behind white students in attending selective colleges, attend two-year colleges in disproportionate numbers, and are less likely to attend or graduate from college. Over 50 years after Brown v. Board of Education,we still live in a society where educational opportunity is divided along racial lines.
Probably the most difficult argument to understand is the notion that consideration of race in admissions unfairly favors minority students. This is not borne out by the statistics. For law school admissions, even with the majority of law schools able to consider race in admissions, the statistical disparity is shocking. According to data compiled by the Law School Admission Council, the acceptance rate for white applicants over the last four years is between 75 percent and 78 percent, while for African Americans it is between 51 percent and 57 percent.
