Students for Fair Admissions v. Harvard and the History Behind Colorblind Admissions

This month, the United States Supreme Court reconvenes to answer important legal questions, including a series of affirmative action cases. One case, Students for Fair Admissions v. Harvard, seeks to redefine the role of race in college admissions by establishing a colorblind, or race-neutral, application process. Racial colorblindness involves eliminating categories of race in order to prevent discrimination. Yet, this racial ideology has a long, complex history as it relates to college admissions, the Black intellectual tradition, and today’s assault on affirmative action and race-conscious policies.

In 1935, the all-white University of Maryland rejected Donald Murray’s application to the law school because of his race. Due to the Plessy (1896) decision’s “separate but equal” standard, the university could legally discriminate against Murray as a Black applicant. The case stemmed from the National Association for the Advancement of Colored People’s (NAACP) efforts to desegregate historically white universities in the early stages of the civil rights movement. Two lawyers, Charles Hamilton Houston and Thurgood Marshall, spearheaded the trial on Murray’s behalf through a colorblind legal strategy. When questioning University of Maryland President Raymond Pearson, Houston posed a simple question: if a student were to leave their race off of an application, would they be admitted to the university? According to Pearson, all qualified students would be admitted to the university through a race-neutral application process. In order to subvert a system of race-conscious segregation, the NAACP recognized the value of colorblind policies and procedures.

The colorblind legal strategy in Murray is important because it opened admissions in other states, such as Missouri, Kentucky, Texas, and Oklahoma. This collection of cases eventually produced the landmark ruling in Brown v. Board (1954), a decision that eliminated segregation in education throughout the US. A decade after Brown, the Civil Rights Act of 1964 reinforced colorblindness by outlawing racial discrimination, though it did not provide redress for the history of segregation and Black Americans’ experiences. The Brown decision and passage of the Civil Rights Act were monumental moments in American history, and the early higher education desegregation cases now constitute part of “the long civil rights movement”—an expanded conceptualization and chronology of the mid-century racial justice struggle.

Following the civil rights era, a series of unique cases developed in which white prospective students began using the Equal Protection Clause and the Civil Rights Act of 1964—two policies designed to protect Black Americans’ constitutional rights—to claim the admissions process at institutes of higher education were racially discriminatory. In 1977, a rejected white medical school applicant, Allan Bakke, successfully sued for admission to the University of California-Davis Medical School. Thurgood Marshall, an early proponent of the colorblind legal strategy as an attorney for the NAACP, was a Supreme Court Justice when the Bakke case came before the court. Marshall defended affirmative action and racial quota systems in his dissenting opinion, but Bakke prevailed. According to Marshall, colorblindness failed to resolve years of racial inequity and the only way to account for the legacy of continued racism was through race-conscious interpretations of the law.

Roughly twenty years after the Bakke case, a collection of students denied admission into the University of Texas Law School gained entry after a US Fifth Circuit Court ruling eliminated affirmative action within its jurisdiction. In 2003, the admissions process for the University of Michigan’s College of Literature, Science, and the Arts was ruled unconstitutional for weighing race too heavily. A ruling that favored the University of Michigan Law School, however, allowed the university to continue using race as long as it did not become a deciding factor in application outcomes. White plaintiffs now employed a colorblind legal strategy, once-used as a desegregation tactic, against imagined anti-white discrimination.

These white plaintiffs and their legal teams argued that affirmative action and race-conscious admissions policies constitute a form of “reverse discrimination” or “reverse racism.” Instead of directly excluding white applicants based on their race, it is argued that accepting less-qualified Black and Latino/a/x effectively discriminates against prospective white students.

In some cases, however, white plaintiffs have not been as successful in establishing a colorblind admissions process. In 2008, Abigail Fisher, a rejected applicant to the University of Texas at Austin, sued the university for racial discrimination. Fisher claimed that Black and Latino/a/x students with lower application scores were admitted ahead of her. While it is true that nine Black and Latino/a/x students with lower scores were admitted, roughly 40 white students that scored below Fisher were also accepted. In addition to these statistics, an independent study found that more than 60 Black and Latino/a/x students with scores higher than Fisher were also rejected from the university.

The legal team that represented Fisher, Edward Blum and the Center for Individual Rights (CIR), was responsible for organizing an advocacy group against affirmative action, Student for Fair Admissions. Although the CIR has historically targeted white candidates for discrimination claims, the organization has shifted its focus to Asian and Asian-Americans. After a series of emails revealed that Harvard admissions counselors engaged in a system of loosely capping entry for students based on their name and background, it was discovered that East Asian and Asian-American applicants—predominately Chinese—were rejected at disproportionately high rates. The admissions process at Harvard is highly selective. In 2018 the university accepted only 5% of applicants for roughly 2,000 admissions slots. Instead of targeting legacy admissions or athletes, the CIR formed Students for Fair Admissions to continue its campaign against affirmative action.

Given the conservative composition of the Supreme Court, it is likely that affirmative action and race-conscious policies will be ruled unconstitutional. It is difficult to determine exactly how the outcome of the Students for Fair Admissions case will alter the landscape of higher education, but there is a precedent for these decisions. In 1995, the University of California Board of Regents eliminated affirmative action in admissions and hiring. When the decision took hold in 1997, researchers discovered that significantly fewer Black and Latino/a/x students applied and were admitted during the first colorblind application cycle. Similar trends occurred in states like Washington and Michigan when ballot initiatives eliminated affirmative action in public institutions.

The history of colorblindness is steeped in Black intellectual history. Not only was it a legal strategy originally intended to provide access for Black students to historically white colleges and universities, colorblindness is often viewed as the ultimate goal of the civil rights movement. As conservative political figures have co-opted colorblindness, these race-neutral policies, practices, and ideas shape Americans’ collective views of Black history. This misguided perspective has important consequences for Black Americans not only as it relates to education, but in dealing with housing discrimination, voting rights, and mass incarceration. In order to respond to ongoing racial injustice that results from colorblind logic, Black liberation principles, or race-conscious demands for justice, are the most effective answer identifying the role of race and racism in American society and politics.