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Representative Burgess Owens (left) and Education Secretary Miguel Cardona offered clashing guidance for colleges navigating the affirmative action ban within hours of each other.
Photo illustration by Justin Morrison/Inside Higher Ed | Getty Images
WASHINGTON, D.C.—A doubleheader of events on Capitol Hill Thursday shone a spotlight on the hardening political battle lines over the U.S. Supreme Court’s decision striking down affirmative action.
In the morning, the House Committee on Education and the Workforce held a hearing on “The Changing Landscape of College Admissions,” during which the Republican-led committee presented a wide-reaching view of the decision’s impact and cautioned colleges against running afoul of the ruling by trying to work around it. Democratic colleagues, meanwhile, took the opportunity to lambaste the court’s decision and advocate for race-neutral alternatives in admissions decisions, such as reducing the weight of standardized test scores and refocusing recruitment efforts on racially diverse high schools.
A few hours later, the Department of Education released the report “Strategies to Increase Diversity and Opportunity in Higher Education,” following up on broader guidance that it provided last month. The report, whose release was accompanied by a live-streamed panel featuring several college presidents, outlined actions that institutions can take to offset the potentially devastating effects of the affirmative action ban on campus racial diversity.
If the timing was a coincidence, it was a telling one. The aftermath of the Supreme Court’s ruling has been defined largely by entrenched partisan actors taking potshots at one another in a battle over how the decision should affect higher education policy. In the middle lies the no-man’s land of the decision itself, a vague and at times self-contradictory piece of jurisprudence that continues to frustrate colleges keen to maintain diversity without falling out of compliance.
As Representative Joe Courtney, Democrat from Connecticut, put it during the committee hearing, the result has been “a mess.”
“The principle of legal certainty was completely trampled by this court,” he said. “Setting aside all of the political arguments here today, the fact of the matter is that if you’re an admissions officer trying to figure out how to make choices in line with this decision, it’s really almost chaos trying to decipher it.”
A Victory Lap and a Warning
The morning hearing was led by Representative Burgess Owens, Republican from Utah and the chair of the higher education subcommittee. He made clear in his opening remarks that he viewed the Supreme Court’s decision as a rejection of racial discrimination, comparing affirmative action to eugenics and declaring the ruling “a major win for equal opportunity.”
“Through decades of demeaning messages, our country has accepted that Black Americans are overall incapable of intellectually competing against white Americans through merit,” said Owens, who is Black. “Affirmative action has been the Trojan horse for that message.”
But his tone took on an unmistakable hardness when he shifted from lauding the court’s decision to chastising colleges he believes have balked at it.
“There remain administrators who have expressed their intent to selectively ignore both the substance and spirit of the Supreme Court ruling,” Owens said. “This committee will keep a close eye on the 2024 application process as it unfolds … we will remain diligent in identifying those who are defiant, those who despite the Supreme Court’s ruling are determined to implement unconstitutional policies.”
Representative Virginia Foxx of North Carolina, the committee’s chairwoman, echoed her colleague’s concerns about colleges’ compliance with the ruling. But she took the opportunity to praise one institution for taking swift action to change its policies accordingly: the University of North Carolina, one of the two defendants accused directly of racial discrimination in the Supreme Court cases—and which some legal experts have said was quicker to adopt a broader interpretation of the ruling than legally necessary.
“UNC is educating undergraduate admissions officers on the new legal standard … and the university made technology changes so no one who makes admissions decisions has access to applicants’ racial demographic data during the admissions season,” she said. “It’s my hope that many other colleges and universities are taking the same step.”
Democratic committee members pushed back, offering a wholly different interpretation—not only of affirmative action’s benefits but also of the legal avenues still open to colleges pursuing diverse student bodies.
“When my colleagues across the aisle say they want a system based on merit, I agree. The problem is the current system is not based solely on merit, and without policies to counterbalance the discriminatory factors, our system will remain discriminatory,” said Representative Bobby Scott, a Democrat from Virginia and the committee’s ranking member. “Justice [Sonia] Sotomayor said it best in her dissent: ‘Ignoring race will not equalize a society that is racially unequal.’”
Representative Pramila Jayapal, a Democrat from Washington, championed alternatives like test-optional admissions and guaranteed acceptance policies—such as Texas’s decades-old top 10 percent plan and the similar one recently adopted in Tennessee—as part of a toolbox for institutions looking to maintain their commitment to equity and diversity in the new legal landscape.
“Alternative admissions policies do not sound like a veiled racial quota, like some on the right allege,” she said. “In fact, they seem to be the same type of race-neutral policies that these activists claim to want in postsecondary education.”
Concrete Guidance or Cannon Fodder?
The race-neutral admissions policies that legislators butted heads over on the Hill formed the centerpiece of the new report the White House released later in the day—which, as interpreted by Owens and his Republican colleagues, amounted to a kind of rebellion against the Supreme Court’s decision.
Following up on last month’s guidance, the Biden administration released what officials called a “crucial road map” to how colleges and universities can maintain their commitment to racial and socioeconomic diversity.
“We’re not going to be able to succeed as a multiracial democracy and compete globally if diverse students lack access to our most life-changing higher education opportunities,” Education Secretary Miguel Cardona said at a press briefing on the report Thursday afternoon. “Inaction is not an option here.”
Cardona and White House domestic policy adviser Neera Tanden unveiled the report at an event and panel discussion featuring officials from Princeton University; Northern Virginia Community College; the University of California, Los Angeles; Trinity Washington University; Morgan State University; and the University of Massachusetts at Amherst. The panelists highlighted some strategies that have worked for them to boost the diversity of their student bodies, including holistic admissions, providing financial support to cover students’ basic needs and developing new ways to reach prospective students.
The 66-page report elaborates on those strategies, suggesting that higher education leaders focus on four areas: recruitment, admissions, financial aid and completion and climate.
“You really have to meet the students where they are, and sometimes that’s unconventional compared to our sort of more traditional enrollment and recruitment strategies,” UCLA chancellor Gene Block said on the panel.
Block spoke from experience about the report’s central assertion: that diversity can be pursued and achieved without race-based admissions.
California voters banned the use of affirmative action in admissions in 1996, and UCLA, along with the rest of the state’s public universities, was forced to experiment with a range of approaches in its stead. Block said UCLA used outreach programs targeting low-income and first-generation students, revamped its admissions process to be more holistic, and focused on transfer students from community colleges. Eventually those strategies paid off, and the university ended up more racially diverse than it had been when affirmative action was allowed.
“When you don’t have affirmative action, everything happens more slowly, more imperfectly, but we have to use the tools we have available,” he said. “We’ve been through this now for a couple of decades.”
Cardona said UCLA’s experience shows that colleges and universities can achieve diversity without affirmative action, but they must be intentional and unconventional about it.
Among other ideas, the department wants colleges and universities to expand recruitment and outreach efforts to underserved student groups, give meaningful consideration in the admissions process to the adversity a student has had to overcome, invest in need-based financial aid programs and focus on student support services to boost completion.
“While the [Students for Fair Admissions] decision limited the ability of colleges and universities to consider an applicant’s race in and of itself as a factor in deciding whether to admit the applicant, there remain legally permissible ways to advance the critical mission of socioeconomic and racial diversity in American colleges and universities,” the report says.
Cardona said the report, which is intended to be a tool or conversation starter, was informed by conversations with higher education officials about efforts that have been successful.
“We need leadership,” Cardona said. “We need innovation and intentional collaboration. We need the sense of urgency that we all had three years ago when our buildings were shut down.”
Cardona has taken an increasingly combative stance in decrying both the underlying philosophy behind the court’s ruling and assertions by conservative legislators and legal activists that the decision should apply to racial equity efforts in higher education more broadly.
A group of 10 Republican senators sent him a letter two weeks ago accusing his department of failing to “embrace the full essence of the Court’s holdings” and expressing concern that he was not up to the task of enforcing the decision through the department’s Office for Civil Rights.
But that just emboldened the education secretary. At a national gathering of admissions officers last Thursday, he doubled down on his stance that colleges should interpret the ruling narrowly and do everything they can to ensure diversity outside of race-based admissions.
“I got a letter last week saying, ‘Stop what you’re doing; it seems like you’re going against the Supreme Court decision,’” he told the audience of several thousand. “That only strengthened my resolve.”
