CU professors discuss what the SCOTUS decision on affirmative action means for Buffs and higher education atlarge


The Supreme Court effectively ended race-conscious affirmative action policies at U.S. colleges with its June 29 decision in Harvard v. Students for Fair Admissions. We dug into the nuances and impacts of the case with two experts from CU Boulder: Kevin Welner, director of the National Education Policy Center, and Jennifer Ho, director of the Center for Humanities and the Arts and a professor of ethnic studies.

These interviews were conducted separately and have been condensed and edited for length and clarity.

How did we get here? 

Jennifer Ho: Let’s start with Ed Blum [the legal activist who founded Students for Fair Admissions]. He began his political career by fighting people who were trying to get gerrymandered, racially segregated neighborhoods to desegregate. He then moved on to affirmative action. This is pure conjecture on my part, but conservative Republicans have had a much broader view of how to fight politically on all fronts: restrict voting, restrict educational access. If you want to restrict public educational access, you can defund public schools. That’s happened. We’ve seen conservatives do a mounted attack on school boards and lay the groundwork for that beginning in the ’90s. The next logical step, of course, is in higher education in terms of affirmative action, which we are currently seeing the gutting of. So this particular Supreme Court decision is actually just one in a series of dominoes meant to dismantle access to higher education.

Kevin Welner: The Supreme Court has a set of rules it runs by. One basic rule is the value of precedence, what’s called stare decisis, the idea that once the court decides something, it doesn’t go back and revisit precedent just because the court makeup has changed. There are clearly exceptions to that over a long run: revisiting Plessy v. Ferguson [via] Brown [v. Board of Education]. So, certainly, there are times when the court needs to [reevaluate precedent]. But the court didn’t just go back and revisit [Plessy]; it tried to implement separate but equal in many cases after that and it became increasingly clear that separate was not equal, that the way that the Plessy decision was being carried out was highly discriminatory. Now what we’re seeing with the current court is a revisiting of precedent simply because the court is now more conservative. There is no other justification. And there is a cynicism to that, and I think a destruction of the federal judiciary so that it doesn’t have that credibility as an institution of justice, but instead is just another political body.

What does this Supreme Court decision mean for prospective CU Boulder students?

Welner: The vast majority of students who attend institutions of higher education go to colleges that are non-selective or minimally selective. Only 16% of college students attend colleges that are highly or moderately selective (such as Harvard). And by moderately selective I mean they accept less than 50% of their applicants. The majority of colleges in this country are going to be non-selective. Metro State in Denver is a non-selective institution; if you meet the basic requirements, you’re admitted. CU Boulder admits more than 75% of applicants [and is moderately selective]. My understanding is that the university didn’t consider race in a strong way in the application process, so the impact of this decision on CU Boulder is going to be a lot less than a place like Harvard.

Ho: I don’t know that it actually is going to impact [CU] too greatly. I’m heartened by — and was surprised at — the level of detail [in CU Boulder chancellor Philip DiStefano’s statement on the Harvard decision]. DiStefano said, ‘OK, this has happened. It’s disappointing. Here are the specific things we have been doing and we will continue to do.’ And for me, as a faculty member who cares about these issues, this isn’t boilerplate language. This is, ‘Let me show you the commitment we’ve made and this ruling doesn’t change anything. This means we’re going to redouble our efforts.’ 

How can universities still create diverse campuses under this ruling?

Ho: If you’re a Black undergraduate student, you have likely, regardless of your zip code, experienced some kind of racist harm. So admitting you into CU Boulder, or any university, can help mitigate against the systemic anti-Black racism that generations of Black people in the United States face. One of the things we can do is admit more Black students into colleges and universities, even if that means weighting other aspects of their applications against lower test scores, because, of course, some of those tests are also inherently racist. 

Welner: Through recruitment efforts throughout the state, trying to make sure that the university is representative of different communities within the state, but also that it supports on-campus academic and social programs to help students be more successful and feel more welcome. 

[The Harvard decision] puts a lot of pressure on legacy programs. Because the nature of a legacy is drawing on who attended the university or college in older days, going back to explicitly segregationist eras, who’s likely to have a legacy? White, wealthy families, disproportionately. So there’s a reason for colleges to go back and rethink their legacy programs. The recruitment and scholarships policies that can have an impact on the diversity of a college or university, for the most part those can move forward. The exception would most likely be anything that is run by the university, and includes an expressly racial element. 

Do universities run the risk of being sued if the percentage of students of color increases? 

Welner: There are aggressive litigators out there who have stepped forward saying, ‘We’re gonna bring lawsuits to keep pushing this.’ There’s this threat hanging over colleges that lawsuits are on their way based on this Supreme Court case. 

How can universities make sure students of color can still access targeted scholarship money?

Welner:There are two obvious ways. One, if you want it to be race-conscious, then it needs to be privately administered, not controlled or directed by the university. Then the second way would be to try to use proxies [zip code, income]. But we know there are no great racial proxies, that if you’re trying to direct money to the Native American community, you really need to take into account the fact that someone is Native American. But there are proxies that can target money toward a greater need.

There’s a third way: Maybe the state could actually invest in higher education and make it affordable for everyone.

What do you think is being left out of the public discussion?

Ho: I think talking about money publicly makes people super uncomfortable. I feel like so often the way that class is discussed in the public discourse, which includes the media, is that we either talk about the uber wealthy, who could do whatever the hell they want, or we talk about really, really poor people. But there’s this amorphous middle class, and I don’t know that we’ve really broken down the amorphous middle class. 

Welner: Affirmative action in admissions is only part of affirmative actions. It’s important to understand the inequities that we see in college demographics. The relatively low number of African American, Native American and Latino students in selective colleges and universities, or really in colleges in general, is the result of opportunity gaps that extend to and beyond preschool. The general term I would use in academic circles is racialized poverty. Many students are never in a position when they’re 17, 18 years old, to successfully apply and attend college. If we’re not addressing issues about housing security, food security, health care, safety, issues of transportation, employment, transiency — all the issues that impact students’ abilities to succeed academically and in life — and if we also aren’t addressing the lack of resources in schools, then affirmative action [college admission] policies at the tail end of all that aren’t going to make that much difference.