Tracing the past, present and future of affirmative action
In the wake of the recent SCOTUS decision on race-conscious college admissions, the News offers an exploration of the history and evolution of affirmative action in the United States.
Yale Daily News
On June 29, the Supreme Court struck down race-conscious college admissions. In its majority opinion, the Court argued that racial affirmative action violates the Fourteenth Amendment’s Equal Protection Clause.
Affirmative action policies in college admissions sought to address past discrimination and promote diversity by looking at identity elements such as race and gender and accordingly working to increase opportunities available to historically disadvantaged groups. When race-conscious admissions policies were still constituional, Yale and most of its peer institutions throughout the United States considered an applicant’s race as one factor among many during the admissions process.
“A whole-person admission review process that takes into account every aspect of an applicant’s background and experiences has enabled colleges and universities to admit the classes they need to realize their missions,” University President Peter Salovey wrote in a statement to the Yale community in which he lambasted the Court’s decision. “Restricting this ability limits universities in opening their doors to students with the widest possible range of experiences.”
Studies show that a repeal of affirmative action could sink Black, Latine and Indigenous students’ enrollment by 50 percent.
The ruling against affirmative action overturned nearly half a century of precedent, and many selective postsecondary institutions nationwide are working to identify and implement changes to their admissions processes intended to maintain campus diversity. Wesleyan University, for example, announced last week that it will no longer advantage legacy applicants in the admissions process, given that the children of alumni tend to be whiter and wealthier than their peers.
While Yale has said it intends to expand its outreach programs, among other listed priorities, the University has has yet to offer specifics on how its holistic application process will change in light of the decision.
The beginnings of affirmative action
The origins of the term affirmative action can be traced back to the Civil Rights Movement in the 1960s. In 1961, President John F. Kennedy issued Executive Order 10925, which laid the foundation for affirmative action in establishing the President’s Committee on Equal Employment Opportunity. The committee aimed to tackle workplace discrimination in federal government contracting.
Under the mandate of Executive Order 10925, federal contractors were required to take “affirmative action” measures intended to eradicate workplace discrimination and promote equal opportunities, regardless of an applicants’ race, color or national origin. The goal was to ensure employers fostered an inclusive work environment for all employees.
During his subsequent tenure, President Lyndon B. Johnson took significant steps to expand the scope of affirmative action. He entrusted the Secretary of Labor with the responsibility of overseeing affirmative action initiatives and introduced the Office of Federal Contract Compliance to monitor federal contractors’ adherence to non-discrimination laws. The primary objective of these measures was to eliminate employment discrimination based on race and later included gender as well.
“To this end, equal opportunity is essential, but not enough,” said President Johnson in his 1965 Commencement Address at Howard University. “Men and women of all races are born with the same range of abilities. But ability is not just a product of birth. Ability is stretched and stunted by the family that you live with, and the neighborhood you live in – by the school you go to and the poverty or richness of your surroundings.”
Over time, Kennedy and Johnson’s idea of equal opportunity expanded. Explicit affirmative action policies gradually extended from employment to education, prompting universities, including Yale, to actively seek a diverse student body.
However, before these changes, numerous universities, including the Ivy League, operated with informal quotas that harmfully targeted Jewish students. According to Dan Oren’s ’79 book, “Joining the Club – A History of Jews and Yale,” the administrators at the University were bothered that Jewish students were performing better than their non-Jewish counterparts. A policy known as the “Limitation of Numbers” was then enforced, with the goal of quietly capping the enrollment of Jewish students at around 10 percent. This unspoken practice persisted for decades, leading to a lack of Jewish representation on campus, and by 1930, Jewish students in the freshman class accounted only for 8.2 percent of the total.
“It was clearly a veiled attempt to limit the number of Jews at Yale,” Oren previously told the News. “I was particularly struck by a University committed to light and truth having a secret policy.”
Former University President Alfred Whitney Griswold eventually phased out the policy in the early 1960s. Griswold took decisive action by issuing orders that one’s religion cannot be used against them in the admissions process. Though the University previously had clear policies with the intention of limiting certain minority students, the 1960s saw a shift in diversity on the campus.
Jeff Brenzel ’75, Yale’s Dean of Undergraduate Admissions from 2005 to 2013, told the News in 2014 that the University started rapidly expanding admission to Black students in the late 1960s and early 1970s, under the presidency of Kingman Brewster, Jr. ’41. In 1964, a record number of 14 Black men matriculated at the University. These 14 Black students of the Class of 1969 helped organize the Black Student Alliance at Yale in 1967, the Afro-American Studies Department in 1969 and the Afro-American Cultural Center in 1969, which became the first Black cultural center in the Ivy League.
Worth David ’56, Dean of Admissions from 1972 to 1992, previously told the News that President Brewster and then-Director of Undergraduate Admissions Russell Inslee Clark Jr. ’57 planted the seeds of affirmative action as we know it today at Yale with their decision to recruit students from minority backgrounds such as African Americans, Catholics and women. However, according to Geoffrey Kabaservice ’88 GRD ’99, a historian who wrote a biography on Brewster, these affirmative action policies were not intended to remain indefinitely; instead, the University intended to recruit minority students aggressively — but for a limited time — to close the existing enrollment gap.
The Bakke decision
Race-conscious admissions faced its first legal challenge in 1971, just two years after American colleges and universities first began practicing affirmative action. Marco DeFunis, a white student, filed a lawsuit against the University of Washington Law School, arguing that he was unfairly rejected due to the “reverse racism” that he believed was an implicit premise of affirmative action.
But it wasn’t until the 1978 landmark case Regents of the University of California v. Bakke said that the Supreme Court legally required educational institutions to revise their affirmative action policies.
Allan Bakke was a white applicant who sued UC Davis for its racial quota system after being rejected from the university’s medical school. At the time, UC Davis allocated 16 of every 100 spots to “qualified” minorities, which Bakke argued was discriminatory.
The Supreme Court ruled in favor of Bakke, holding that the university’s quotas violated the Equal Protection Clause and were thus unconstitutional. The ruling effectively outlawed the use of explicit racial quotas in admissions.
“Hence, the purpose of helping certain groups whom the faculty of the Davis Medical School perceived as victims of ‘societal discrimination’ does not justify a classification that imposes disadvantages upon persons like respondents, who bear no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered.” Justice Lewis F. Powell wrote in the Court’s majority opinion.
Under Powell’s reasoning, colleges and universities could still legally consider race as one factor among many in their admissions processes; however, any continued use of racial quotas would be unconstitutional.
In an email to the News, Yale Law School professor Vicki Schultz highlighted the idea of “academic freedom” in Powell’s opinion. According to Schultz, Powell’s guiding rationale was that a university should be free to make decisions that enhance student body diversity and thereby maximize the educational experience for everyone.
However, according to Duncan Hosie LAW ’21, an appellate lawyer and former legal fellow at the ACLU’s Ruth Bader Ginsburg Center who has written extensively on constitutional law, Justice Thurgood Marshall’s dissent provided a stronger outline for structuring affirmative action policies.
“Compared to Justice Powell’s opinion in Bakke, Justice Thurgood Marshall’s dissent outlined a far more compelling justification for affirmative action, grounding it in the moral urgency of addressing past wrongs and their persistent effects in the present,” Hosie wrote to the News. “If the Court had adopted Justice Marshall’s compelling framework, we would be having a different conversation today.”
Marshall, the first African American justice to serve on the Supreme Court, argued that African Americans have historically been discriminated against not as individuals, but by the color of their skin. Therefore, under Marshall’s framework, it should be unnecessary for African Americans to demonstrate that they have been victims of racial discrimination, regardless of their wealth or social position. According to Marshall, African Americans as a group were marked as inferior by the law and required greater equal rights protection under the Fourteenth Amendment.
As the 20th century progressed, educational institutions began adopting more comprehensive and selective admissions processes. The change in approach reframed the affirmative action conversation. Now, beyond satisfying the demands of social justice, diversity came to be seen as a boon to the educational experience itself.
After the landmark Bakke decision, affirmative action policies attracted increased scrutiny in California, particularly by voters. In 1996, Californians voted to approve Proposition 209, which effectively prohibited the use of affirmative action in public colleges and universities across the state. This made California the first state to ban race-conscious college admissions.
After Proposition 209 went into effect, both the University of California, Los Angeles and the University of California, Berkeley experienced immediate drops in minority student enrollment. At UCLA, the share of Black students dropped from 7 percent to around 3.5 percent by 1998. By 2022, Black students made up just 6 percent of the student body at UCLA — still below pre-Proposition 209 enrollment levels.
But universities that continued to practice race-conscious admissions, like Yale, experienced different results over the same period.
Minority students, at the time defined as Asian Americans, African Americans, Native Americans and Hispanic students, comprised 36 percent of the 1993-94 Yale College freshman class. At the School of Medicine, the share of minority students had risen from 21 percent in 1988–89 to 36 percent in 1994, with 174 of 475 students coming from underrepresented backgrounds. Similarly, by 1994, one-third of Yale Law School students were minorities.
Grutter v. Bollinger
In 2003, affirmative action faced a new legal challenge by petitionerBarbara Grutter, a white applicant to the University of Michigan Law School who was denied admission in 1997 with a 3.8 undergraduate GPA and an LSAT score of 161. The Law School openly acknowledged using race as a factor in their admissions decisions, citing their aim to cultivate diversity among the student body as a “compelling interest.”
Nevertheless, the Supreme Court held in a 5-4 decision penned by Justice Sandra Day O’Connor that the University of Michigan Law School’s use of racial preferences did not violate the Equal Protection Clause of the Fourteenth Amendment. The Court found that Michigan’s approach served the legitimate purpose of promoting the educational benefits that arise from a diverse student body.
“The policy makes it clear, however, that even the highest possible score does not guarantee admission to the Law School,” Justice O’Connor wrote in the Court’s majority opinion. “Rather, the policy requires admissions officials to look beyond grades and test scores to other criteria that are important to the Law School’s educational objectives.”
The Court emphasized that the Law School’s admissions process involved a comprehensive and personalized assessment of each applicant. This policy ensured that decisions were not based solely on race, but rather took into account a broad range of factors contributing to diversity.
“The Constitution abhors classifications based on race, not only because these classifications can harm favored races or are based on illegitimate motives, but also because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all,” Justice Clarence Thomas LAW ’74 wrote in a dissenting opinion.
Thomas, a long-time critic of affirmative action, has publicly suggested that he got into Yale primarily because of affirmative action. At the time he was admitted in 1971, YLS had a goal of having students of color make up 10 percent of the incoming class.
In Thomas’s 2007 memoir, My Grandfather’s Son, he said that he believed a degree from Yale Law School held different meanings for white and Black graduates because of the “stigma of preferential treatment,” which led to his feelings of disillusionment with affirmative action. To symbolize his disappointment, he placed a fifteen-cent price sticker from a package of cigars to his law degree frame as a constant reminder of the mistake he believes he made by attending Yale.
An important part of the Court’s decision in Grutter v. Bollinger was the need for colleges and universities to put a time limit on race-conscious admissions policies. Justice O’Connor expressed the Court’s expectation that 25 years later, the use of racial preferences would no longer be required to advance equitable admissions practices. By this reasoning, the Court predicted that affirmative action would be obsolete by the year 2028.
Despite the Court’s ruling, race-conscious admission policies did not last much longer in Michigan. In 2006, the state followed in California’s steps and implemented a ban on race-conscious admissions in its educational institutions.
At the time of the ruling, Black students constituted approximately 7 percent of the student body at the University of Michigan, Ann Arbor. Today, the representation of Black students has dwindled to around 4 percent.
Since Michigan, six other states have race-conscious admission prior to the 2023 SCOTUS ruling – Idaho, Arizona, Nebraska, New Hampshire, Oklahoma and Washington. These states also experienced similar trends within their state universities. Florida banned affirmative action in 1999.
SCOTUS doubles down on affirmative action
In 2008, a significant legal battle unfolded at the University of Texas, with applicant Abigail Fisher at its center. She filed a lawsuit against the university after being denied admission, challenging the institution’s use of race-conscious admissions policies. The case, Fisher v. The University of Texas, gained widespread attention because of its potential to reshape the Supreme Court’s stance on affirmative action.
At the time, the University of Texas employed a two-tiered admissions approach. The first tier automatically admitted Texas applicants who ranked in the top 10 percent of their high school graduating class, regardless of race. For the remaining spots, which accounted for approximately a quarter of admissions offers, the university considered various factors, including race. It was this discretionary aspect of the admission policy that Fisher contested.
After the Supreme Court’s initial hearing in 2013, the case was remanded to a lower court for review. However, in 2016, the justices reached a decisive 4-3 decision in favor of the University of Texas. This ruling affirmed the constitutionality of the university’s admissions program, marking a significant milestone in the ongoing debate surrounding affirmative action.
“Therefore, although admissions officers can consider race as a positive feature of a minority student’s application, there is no dispute that race is but a ‘factor of a factor of a factor’ in the holistic-review calculus,” Justice Anthony Kennedy wrote in the majority opinion. “Furthermore, consideration of race is contextual and does not operate as a mechanical plus factor for underrepresented minorities.”
Thomas authored a dissenting opinion based on the Equal Protection Clause of the Fourteenth Amendment. According to Thomas, any use of race as an admissions factor infringes on the fundamental principle of equal protection under the law.
In a separate dissent, Justice Samuel Alito LAW ’75 wrote that the majority opinion showed undue deference to the University of Texas’ justification for using race in admissions and failed to apply sufficient scrutiny.
Both Thomas and Alito emphasized that the Equal Protection Clause was put in place in part to prevent the government from treating individuals solely as members of racial groups. They argued that any race-based classifications, regardless of their intended purpose, should be subject to the highest level of constitutional scrutiny.
Justice Antonin Scalia, a vocal critic of affirmative action policies like Thomas and Alito, passed away before a decision was reached in this case, but during the oral arguments, he sparked controversy by making a statement about “slower-track” schools. Scalia’s argument centered on the notion that students with lower academic performance would flourish more effectively in less advanced educational institutions.
“There are those who contend that it does not benefit African Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a slower-track school where they do well,” Scalia said, referring to a brief citing that most Black scientists in America come from “lesser schools.”
Ultimately, the Court upheld race-conscious admissions until it heard cases against Harvard and the University of North Carolina in 2022.
Affirmative action overturned
Only six years after the University of Texas decision, the Supreme Court undertook a significant reevaluation of race-conscious admissions by hearing two cases jointly. The cases were brought by Students for Fair Admissions, a nonprofit organization founded by conservative activist Edward Blum. SFFA filed lawsuits against Harvard University and the University of North Carolina at Chapel Hill in 2014, alleging discrimination against Asian American and white students in the admissions process. However, many legal experts agreed that the underlying objective of the complaint was to challenge the existing precedent allowing affirmative action in college admissions.
In 2019 and 2021, lower courts ruled in favor of Harvard and UNC, respectively. These courts concluded that the universities’ approach aligned with the no-quota legal framework established by the Supreme Court’s 1978 ruling in Regents of the University of California v. Bakke.
Before the Court heard oral arguments, Yale and 14 other universities filed a joint amicus curiae brief, a statement by an individual or group who is not a party to the case but wants to provide the Court with additional information, supporting the defendants’ race-conscious admissions policies. The brief came after SFFA also filed a lawsuit against Yale over similar allegations.
“The stakes are high and the ruling could be very far-reaching,” Linda Greenhouse LAW ’78, a clinical lecturer and senior research scholar at YLS and former New York Times Supreme Court reporter, previously wrote to the News. “It’s no exaggeration to say that what’s on the line is the ability of colleges and universities (and private secondary schools, for that matter) to take applicants’ race into account in their effort to construct a diverse class or maintain diversity in the student body.”
However, in June 2023, the Court ultimately ruled 6-2 against Harvard and 6-3 against UNC that affirmative action in college admissions is unconstitutional. Justice Ketanji Brown Jackson recused herself from the Harvard case since due to her former position on the school’s Board of Overseers.
The majority opinion, authored by Chief Justice John Roberts and joined by Justices Thomas, Alito, Neil Gorsuch, Brett Kavanaugh ’87 LAW ’90 and Amy Coney Barrett, emphasized that colorblind admissions are necessary for a society to be racially equal.
“Eliminating racial discrimination means eliminating all of it,” said Roberts in the majority opinion.
Referring back to Justice Powell’s opinion in Bakke, Schultz noted that it was essentially the “diversity” rationale for affirmative action that the Supreme Court invalidated in the SFFA decisions, or at least made far more difficult to legally justify.
Justices Jackson, Sonia Sotomayor LAW ’79 and Elena Kagan took the opposite stance. They emphasized the importance of diversity in college classrooms and the additional barriers many students of color face in applying to elite universities.
In her dissenting opinion, Justice Jackson underscored the enduring and historical nature of the racial disparities in higher education, an argument that echoes Justice Marshall’s Bakke dissent, according to Hosie.
“Deeming race irrelevant in law does not make it so in life,” Jackson wrote.
Fellow dissenter Sotomayor attributes much of her acceptance to Yale Law School to affirmative action, much like Justice Thomas. Unlike Thomas, though, she has consistently supported these policies, going so far as to refer to herself as the “perfect affirmative action baby.” She has consistently defended the contributions she believes she brought to both the classroom and the workplace as a Hispanic woman.
In her 2013 memoir, “My Beloved World,” Sotomayor also noted the role she believes affirmative action played in her admission to Princeton. She mentioned her initial struggles, like receiving a C on her first midterm paper due to her inexperience in essay writing. She initially questioned her admission but ultimately graduated summa cum laude and later gained admission to Yale Law.
“Without affirmative action, I couldn’t have even participated in the race of a good education,” Sotomayor said at a Woolsey Hall talk in 2014. “I didn’t even know there was a race being run.”
The Biden administration’s answer
After the Supreme Court’s decision, the Biden administration was quick to respond. They urged colleges and universities across America to maintain a diverse student body.
“We cannot let this decision be the last word,” Biden said shortly after the ruling at the White House. “While the court can render a decision, it cannot change what America stands for.”
Biden called for a “new path forward” that is consistent with the ruling. He suggested a new standard in which universities account for the “adversity” a student had overcome when selecting from a pool of qualified applicants. This means that in addition to looking at grades and achievements, colleges would also take into account the obstacles a student has encountered in their life.
In addition to meeting admission requirements, Biden proposed the consideration of key factors such as financial means, first-generation college status, place of upbringing and general hardships, including experiences of racial discrimination. Notably, he also expressed his commitment to directing the Department of Education to analyze strategies for fostering inclusive and diverse student bodies that align with the Court’s decision.
“The truth is, we all know it, discrimination still exists in America,” Biden said. “[The] decision does not change that.”
Whether schools like Yale implement a formal measure of adversity into their admissions processes remains to be seen.
Yale’s response to the decision
Despite the ruling, Yale has voiced its commitment to a diverse student body.
In a joint statement following the decision, Yale College Dean Pericles Lewis and Dean of Undergraduate Admissions and Financial Aid Jeremiah Quinlan emphasized Yale’s commitment to holistic review.
“Yale’s whole-person review process is one of the College’s great strengths and has yielded student and alumni bodies that reflect the enormous depth and breadth of humanity,” the statement read. “The approach enables admissions officers to consider the many factors that shape each applicant’s candidacy.”
While Yale cannot directly factor race into its admissions decisions anymore, applicants will retain the ability to discuss their racial background in Yale’s application materials. However, admissions officers can only take these details into consideration if they are “concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university.”
In other words, any mention of race must be directly relevant and demonstrative of the applicant’s unique qualities or accomplishments to be considered as part of Yale’s holistic evaluation process. Specifics of what this looks like in practice, though, are not completely clear.
While the effect on the racial and ethnic demographics of the Yale College class of 2028, the first that will be admitted following the Court’s decision, remains to be seen, studies show that admissions rates for Black, Latine and Indigenous students are likely to decrease by approximately 50 percent. Yale’s shift to test-optional policies has shown a correlation to increased applications from underrepresented minorities, but research shows that admissions rates for minority students are still likely to decrease.
In the Yale College class of 2026, 53 percent of US citizen and permanent resident students identified themselves as members of a minority group. Among these, 27 percent identified as Asian American, 14 percent as Hispanic or Latino, 13 percent as African American and 3 percent as Native American.
“The classes of 2025 and 2026 are the most diverse in Yale’s history, each composed of over 50 percent of people of color,” the Yale College Council wrote in an open letter. “Race is but one element of the kind of diversity that enhances our universities, from classroom discussions to student life. In the past decades, affirmative action has brought us not only a more welcoming Yale for those historically excluded, but a more enriching Yale for each and every person on campus.”
The Office of Undergraduate Admissions is located at 38 Hillhouse Ave.