Donald Trump may be on his way out, but the war on affirmative action remains ongoing. Despite the fact that lawsuits against universities for their admissions policies have been largely unsuccessful, both the Department of Justice and private conservative activist groups continue to file them. In early October, the Department of Justice filed a lawsuit against Yale for race-based discrimination, adding another high profile affirmative action case to the mix. Though the Supreme Court has ruled four times in the last forty years that affirmative action is constitutional, Harvard, the University of Texas at Austin and the University of North Carolina at Chapel Hill are all fighting similar suits. 

The fight for schools to remain race-conscious in an effort to maintain diversity and reach their educational goals has been fought and won many times in the nation’s highest courts. While every new lawsuit alleges that taking race into account is discriminatory and ruinous to the meritocratic principles of this nation, time and time again, the data does not bear this out. It makes me wonder if Students for Fair Admissions, one of the primary groups bringing these lawsuits, has heard of legacy preference.

A lawsuit, brought by Students for Fair Admissions against UNC’s admission criteria, is continuing to a federal trial this week. The suit alleges that race is used “at every stage” of determining the admission decisions of Black and Hispanic students. However, statistical analyses of the admissions decisions differ substantially, showing that race accounts for under 1% of decisions to up to 42% of in-state Black applicants. UNC denies that race is more than one of a multitude of factors used in admissions. 

Though the Supreme Court has held that racial quotas are unconstitutional, affirmative action and admissions or hiring practices that consider race as one of many factors were deemed permissible. 

Students for Fair Admissions argue that diversity could be achieved by concentrating admissions decisions around geography or socioeconomics instead of race — a “race-neutral” approach. UNC and Harvard, who has also dealt with recent challenges to its consideration of race in admissions, both claim this proposed change would only serve to reduce diversity. 

There is plenty of evidence to suggest that UNC and Harvard are correct. Chicago Public Schools used race-based admissions as a way to diversify its test-in high schools until 2009, when it turned to socioeconomic-based admissions after a court mandate to integrate students based on race, defining them as either “‘white’ or ‘minority,’” was lifted. Socioeconomic status as a factor for admissions to these selective high schools was intended to help maintain the racial diversity of the schools. 

Socioeconomic factors are applied to census tracts in the city, designating each census tract tier 1-4. Schools then take a certain percentage of their student populations from each tier, with 30% of the seats going to the top scorers, regardless of their tier. From 2009 to 2019, the percentage of white students at Walter Payton College Preparatory High School, one of the city’s top public high schools, has increased from 36% to 44%, while the percentage of Black students has decreased from 26% to 11%. For context, the district was about 11% white in 2019, compared to almost 36% Black. 

Not only are “race-neutral” approaches to achieving racial diversity in schools ineffective, they are also nonsensical. As argued in the “Journal of Law Reform” at the University of Michigan, “a ‘race neutral alternative’ only makes sense when the goal itself is race neutral.” For as long as schools hold racial diversity as important to their educational mission, it makes sense to be race conscious during the admissions process. 

But what about the poor victims of affirmative action? Depending on where you are and who you ask, these are usually either white or Asian American students. At Harvard, where the affirmative action suit hinges around admissions policies that are allegedly unfair to Asian American students, even if all Black and Latinx applicants were eliminated, the percentage of Asian American students admitted would rise by only about 1%. In California — where affirmative action has been banned in the University of California university system since 1998 — the share of Asian students has declined, suggesting that they were beneficiaries of affirmative action. 

In the case of UT-Austin, the white plaintiff in Fisher v. The University of Texas was denied admission, but so were 168 Black or Latinx students with grades as good or better than hers. Affirmative action has been a huge boost to white women specifically, and it is also worth noting that at elite colleges, preference for legacy admits plays a far larger role than race and disproportionately favors white students. In other words, if you didn’t get into your dream school, it’s far more likely that a white kid took “your” spot.

Jessie Mitchell can be reached at

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