Deciding where to send your child to kindergarten has become one of the most .

A conservative mainland group whose lawsuit against Harvard University ended affirmative action in college admissions is now building support in Hawaiʻi to take on Kamehameha Schools’ policies that give preference to Native Hawaiian students.

Students for Fair Admissions, based in Virginia, recently launched the website . It says that the admission preference “is so strong that it is essentially impossible for a non-Native Hawaiian student to be admitted to Kamehameha.”

“We believe that focus on ancestry, rather than merit or need, is neither fair nor legal, and we are committed to ending Kamehameha’s unlawful admissions policies in court,” the website says.

Kamehameha’s Board of Trustees and CEO Jack Wong said in a written statement that the school expected the policy would be challenged. The institution — a private school established through the estate of Princess Bernice Pauahi Bishop to educate Hawaiians — successfully defended its admission policy in a series of lawsuits in the early 2000s. The trustees and Wong promised to do so again.

“We are confident that our policy aligns with established law, and we will prevail,” the statement said.

The campaign also drew criticism from the Office of Hawaiian Affairs, established in the late 1970s for the betterment of Native Hawaiians. OHA’s Board of Trustees called it an “attack on the right of Native Hawaiians to care for our own, on our own terms.”

“These attacks are not new — but they are escalating,” the trustees said in a written statement. “They aim to dismantle the hard-won protections that enable our people to heal, rise, and chart our future.”

Several groups have tried and failed in the past to overturn Kamehameha’s admissions policy. Federal courts, siding with Kamehameha, have ruled that giving preference to Native Hawaiians helps alleviate historical injustices they faced after the overthrow of the Hawaiian Kingdom in 1893.

In the 2006 decision upholding Kamehameha Schools’ admissions policy, a 9th Circuit Court of Appeals panel pointed to longstanding challenges Native Hawaiian students have faced in schools. 

“It is clear that a manifest imbalance exists in the K-12 educational arena in the state of HawaiÊ»i, with Native Hawaiians falling at the bottom of the spectrum in almost all areas of educational progress and success,” Judge Susan Graber wrote in the majority opinion. 

These disparities persist. Just over a third of Native Hawaiian students in public schools were proficient in reading in 2024, compared to 52% of students statewide. Less than a quarter of Native Hawaiian students were proficient in math.

The state education department has also fallen short of providing families with adequate access to Hawaiian language immersion programs, according to two lawsuits filed against the department this summer. The Hawaiian immersion programs are open to all students, not just those of Hawaiian ancestry.  

Moses Haia III, a lawyer and former director of the Native Hawaiian Legal Corp., said that improving outcomes for Hawaiian students is Kamehameha’s primary reason for existing. He said this new challenge appears to be based on ignorance of Hawaiʻi’s history.

“Ultimately, what I see is these people being uneducated,” Haia said of the mainland group. “Not knowing the history of HawaiÊ»i, not knowing the reasons for Kamehameha’s existence, and just once again trying to push Hawaiians into this box
 and wanting to be on top.”

Past Challenges 

The U.S. Supreme Court ruled in 1976 that private schools can’t discriminate based on race in a case called Runyon v. McCrary, which involved Black school students trying to gain admission to private schools that had yet to integrate non-white students.

An anonymous student sued Kamehameha in 2003, invoking the 1976 ruling and alleging that the school’s policy of giving preference to Hawaiian children was discriminatory. The case eventually landed in the 9th U.S. Circuit Court of Appeals.

A majority of the appeals court judges sided with Kamehameha. They used a part of the Civil Rights Act that prohibits discrimination in the workplace as a legal framework for looking at the admissions policy.

Judge Graber wrote that a preference for Native Hawaiian students “serves a legitimate remedial purpose by addressing the socioeconomic and educational disadvantages facing Native Hawaiians, producing Native Hawaiian leadership for community involvement, and revitalizing Native Hawaiian culture, thereby remedying current manifest imbalances resulting from the influx of western civilization.”

But it was a narrow victory for Kamehameha, an 8-to-7 vote. Dissenting judges wrote that admitting mostly Hawaiian students didn’t create a diverse student body; others said that the policy was clearly discriminatory.

The anonymous student appealed to the U.S. Supreme Court. But Kamehameha entered a $7 million settlement with the student and their mother before the court decided whether to take up the case.

While the settlement safeguarded the admission policy from a ruling by the nation’s highest court it also meant lawyers punted the issue.

Another group of anonymous students challenged the admissions policy a few years later and again took that case to the Supreme Court. But the court declined to take up that case in 2011.

Students for Fair Admissions previously brought two landmark cases against Harvard and the University of North Carolina, arguing that the two schools’ race-conscious admissions policies discriminated against Asian American and white applicants. The Supreme Court ruled in 2023 that colleges cannot use race as a factor in their admissions, although the decision didn’t specify what this could mean for K-12 schools.

Last fall, the number of Black students  fell, although some researchers cautioned that colleges might not see the full impact of the Supreme Court ruling until a few admissions cycles have passed. 

The challenge to Kamehameha Schools’ admissions policies comes amid national pushback on efforts to promote diversity in schools. In February, the U.S. Department of Education said any colleges and K-12 schools using race-based practices in hiring and admissions could lose federal funding, although a court subsequently prevented the department from enforcing those requirements. 

Kamehameha receives no funding from the federal government, according to its tax filings. The school, which is the state’s largest private landowner, has assets valued at about $15 billion.

This was originally published on .

The federal departments of Education and Justice are investigating whether changes to the admissions policy at a prestigious Virginia high school violated the civil rights of Asian American students, even though the .

The investigation comes after the Virginia Attorney General’s Office said its own investigation found “reasonable cause” to believe bias against Asian American students motivated the changes at Thomas Jefferson High School for Science and Technology in Alexandria, Virginia, and referred the case to federal authorities.

Under President Donald Trump, the Education Department has warned school districts that even race-neutral policies that aim to diversify magnet schools and honors programs , despite court rulings that have repeatedly upheld such policies.

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Many school systems with selective high schools are in the midst of ongoing debate about how students should qualify for those schools.

This is the first civil rights investigation during the second Trump administration to look specifically at high school admissions. Other cases have targeted and as the Trump administration tries to root out common practices associated with diversity, equity, and inclusion.

Fairfax County Public Schools changed the admissions criteria for the school, commonly known as TJ, in 2020 with the goal of creating a more diverse student body.

The 1,800-student school draws from five area school districts and often sends students on to elite colleges and successful careers. In the years before the change, the student body typically was more than two-thirds Asian American. Most students came from just a few middle schools. .

The district dropped the use of standardized test scores, incorporated “experience factors” into the admissions process, and reserved seats for students from each middle school in the area. Parents, many of whom were Asian American, organized as the Coalition for TJ and sued the district over the changes, but the Supreme Court declined to take the case in early 2024. That seemed to be the end of the matter.

But this week Virginia Attorney General Jason Miyares, a Republican, said a two-year investigation had found evidence that . Miyares said school board members in private communications described the policies as having “an anti asian feel” and that the changes would “kick out Asians.”

After the policy change, Asian American students went from 73% of admitted students to 54%, the attorney general’s office said. The share of white, Black, and Latino students all increased. The study body is currently about 60% Asian American, 20% white, 7% Latino, and 5.5% Black.

The attorney general’s office did not release a full report that would provide more context for board member comments and told Chalkbeat to obtain it from the school district. The school district said it would consider the request but did not immediately share the report. Coalition for TJ also alleged in its lawsuit that the school district was biased against Asian American students, but the court did not find that the policy change violated equal protection requirements.

Miyares referred the case to the federal Justice and Education departments, which announced they would open Title VI investigations into the district. Title VI protects students from discrimination on the basis of race or shared ancestry.

“Thomas Jefferson High School in Fairfax County has long had a reputation for producing some of our nation’s brightest minds, due in no small part to its rigorous admissions process,” Education Secretary Linda McMahon said in a statement announcing the investigation. “The Fairfax County School Board’s alleged decision to weigh race in TJ’s admissions decisions appears to be both contrary to the law and to the fundamental principle that students should be evaluated on their merit, not the color of their skin.”

A spokesperson for Fairfax County Public Schools said the district was reviewing documents related to the investigation and would have a more detailed response in a few days.

“This matter has already been fully litigated,” the district said. “A federal appellate court determined there was no merit to arguments that the admissions policy for Thomas Jefferson High School for Science and Technology discriminates against any group of students.”

Admissions policy changes are contested ground

Yuyan Chou, a member of Coalition for TJ, that the federal investigation gives parents new hope.

“The Supreme Court decided basically not to hear our case and at that point, I thought the American dream died,” she said. “There’s no path forward, there’s nothing going to happen again until today. I believe there is a chance we can revive that dream.”

Chris Kieser, a senior attorney for the Pacific Legal Foundation, which represented Coalition for TJ and regularly brings lawsuits opposing affirmative action, said he was pleased to see the federal government take another look at the case.

“We certainly think there are grounds to investigate,” he said. Just because the Supreme Court didn’t take up the case “doesn’t mean there were no issues.”

Kieser said the Pacific Legal Foundation continues to hope that the Supreme Court will take up a high school admissions case. Policies that aim to diversify selective high schools often end up discriminating against Asian American students, Kieser said, and the fact that those student continue to gain admittance at high rates under revised policies doesn’t mean they don’t discriminate against individual students.

Derek Black, a law professor at the University of South Carolina, said civil rights investigations can apply a different standard in seeking to protect students than the Supreme Court did in declining to hear the case. But the Education Department’s interpretation of the law appears to be in direct violation of court rulings.

“They have no legal authority to enforce Title VI in a way that is inconsistent with the law,” he said. “If TJ is willing to stand up for itself, it will have to challenge the administration in court. And this is what has been going on all over the country.”

Civil rights investigations often result in negotiated settlements in which school districts agree to make certain changes. The federal government also has the power to withhold federal funds to penalize school districts. Historically that hasn’t happened. But under Trump, the in an effort to get states and school districts to comply with its interpretations of the law.

Black said the department appears to be applying disparate impact theory — a type of legal analysis that looks at whether certain policies affect certain groups in disproportionate ways — to a high school admissions policy just weeks after Trump .

The administration would need a “smoking gun” that showed bias against Asian American students to conclude that the district violated those students’ civil rights, Black said.

This story was originally published by Chalkbeat. Chalkbeat is a nonprofit news site covering educational change in public schools. Sign up for their newsletters at .

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In most places in the country, enrolling in high school is a simple matter: You graduate middle school and move on to your local high school.

That’s not .

In the nation’s largest school system, 12- and 13-year-olds go through a process that many say is as stressful — or more so — than applying to college. Students must rank preferences from a list of more than 400 schools citywide with widely varying specialties and admissions requirements, including essays, auditions, and interviews. Then, they wait months for an algorithm to spit out a match.

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Many of those features are a result of big reforms that came two decades ago with the intention of making the system more fair and efficient. Twenty years later, some of those changes have paid off, but segregation and inequality remain baked into the system, a recent convening found.

The Nov. 18 conference, organized by Fordham Law School’s Feerick Center for Social Justice and the nonprofit New York Appleseed, which advocates for school integration, brought together policymakers, academics, admissions professionals, parents, and students to reflect on how the city’s current admissions system came to be and how it’s working.

Measuring how the reforms of two decades ago have worked is complicated and depends on how you define success, panelists said.

As a “technical solution, these reforms were very successful,” said Sean Corcoran, associate professor of public policy and education at Vanderbilt University who has studied city high school admissions for decades. Far fewer students ended up without a match and were assigned to a school they didn’t choose than before the reforms, Corcoran said, and the changes made it far more difficult for schools and families to game the system.

But as the number of high school options exploded and information became more accessible through the internet, the system has become more and more complex for families, posing equity concerns in a city where the time, resources, and savvy to navigate all that information aren’t evenly distributed.

And despite efforts over the years to make the system more fair, it remains

Here are some of the big takeaways and lingering questions from the convening.

Reforms were a bid to bring order to an unwieldy system

Most immediately, the reforms introduced by former Mayor Michael Bloomberg and schools Chancellor Joel Klein were an effort to rationalize a system officials said was rife with inequity and inefficiency.

Before the reforms, students had the option of attending a zoned school but could also apply to up to five options across the city. Students could get into multiple schools or none at all. Some 30,000 students a year didn’t get into any of their choices and were assigned a school by the city, according to

There were also more ways for schools and families to game the system, experts said. Principals could withhold a portion of their seats until late in the process, giving them more discretion over whom to admit.

By requiring all students to participate in the choice system and running their rankings through an algorithm that spit out a single match per applicant, officials tried to maximize the number of students getting into a school of their choice. The number of unmatched students dropped from 30,000 to 3,000.

Under the old system, families could win an advantage at some schools by ranking them first, incentivizing families to be strategic with their rankings. Under the current system, ranking a school lower down on their list no longer puts students at an admissions disadvantage.

Last year, 77% of eighth graders citywide got into one of their top three choices, according to Education Department data.

“That is an important criteria, but by itself is not a sufficient measure of success,” said Corcoran.

The promise and perils of more information

Many of the tweaks Education Department officials have made over the years were efforts to make information more accessible to more families, from creating a new online application and school search tool, to compiling school open house dates in a central calendar, to introducing a .

“We still have a very complex system we’re operating in,” said Lianna Wright, the executive director of Enrollment Research and Policy at the Education Department’s Office of Student Enrollment. But “we’ve made a lot of changes to the process to make it more transparent and to try to advance equity.”

And there’s some evidence that increasing access to better information about schools for disadvantaged families can make a difference. A research team led by Corcoran found that offering middle school students simple tools to help them compare the quality of high schools in their neighborhoods helped them attend schools with higher graduation rates.

But there are also dangers to continuing to flood families with more information and relying on that approach to increase equity, some panelists warned.

“​​It seems like there’s more and more information 
 and that is good for transparency, but it may actually increase racial and class disparities in admissions,” said Christopher Bonastia, a professor of sociology at Lehman College who has .

Selective admissions continue to be a defining and dividing feature

It’s impossible to understand the city’s high school admissions system without grappling with the prevalence of screened schools that select students based on prior academic performance, essays, audition, neighborhood of residence, and more.

Debates over the effects of screening stretch back decades before the 2004 admissions reforms. State legislators enshrined the test that determines entry to the city’s specialized high schools in 1971. A 1986 New York Times letter to the editor from future Mayor David Dinkins lamented the growth of selective “theme” schools that created “two school systems, one rich and one poor, one a success and the other a failure.”

But the landscape of screened high schools has changed dramatically over the past two decades as the city shuttered dozens of large high schools and opened hundreds of new ones. Manhattan gained roughly 1,000 screened seats since 2004 while the Bronx lost more than 2,000, according to an analysis from Jen Jennings, a professor of sociology and public affairs at Princeton University. The city’s most selective schools far out of step with the demographics of the school system, despite tweaks over the years to screened admissions and the growth of programs that give underrepresented students priority.

City officials and supporters of the screened schools argue they’re immensely popular, ensure high achievers are challenged academically, and keep families who might otherwise leave in the system.

But the existence of those schools also concentrates more low-achieving and disadvantaged students in unscreened schools, and students at those schools are “acutely aware of the status of their school,” said Bonastia, the Lehman College professor.

“It made for a really sad experience to watch all my friends go to these ‘good’ high schools, and where I went it wasn’t really looked at as a great high school,” said Katelyn Melville, a senior at the Brooklyn Institute for Liberal Arts, an unscreened school in Flatbush. “It made me feel really less than.”

Chalkbeat is a nonprofit news site covering educational change in public schools.

As state officials move closer to considering changes to admission policies governing vocational high schools, including potentially requiring the use of a blind lottery system to award seats, the temperature of the debate is getting turned up.

The state Board of Elementary and Secondary Education has held a series of four hearings over the past month, including two this week, and a subcommittee of the board has been tasked with studying the issue further before potential changes are considered. But it’s clear that, , the issue is coming to a head – and one side in the debate will not be happy with the outcome.

At issue is big disparities in voc school enrollment of lower-income students, English learners, special needs students, and students of color. Under state regulations adopted in 2003, the schools had been using selective admission criteria that considered applicants’ middle school grades, attendance and discipline record, and a recommendation in awarding seats.

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Vocational schools have grown markedly in popularity in recent years, and there are many more applicants each year than seats available. Nearly half of the roughly 20,000 middle school  students who applied in 2023, or about 8,500 students, did not get admitted.

Under pressure from civil rights and education advocates, the state board modified the regulations in 2021 to make use of the criteria optional. It also said excused absences can’t factor in the attendance measurement and only major discipline infractions can be considered. The new regulations also warned that schools cannot use any admissions criteria that have a disproportionate impact on the enrollment of demographic groups protected by state and federal law unless they can show they are “essential to participation” in the school’s program, and that there are not other equally effective standards that would not have such an effect.

Many schools tweaked their admission scoring rubric, but nearly all retained selective standards for accepting students. Critics said the changes the state made did not go far enough, and they called on officials to mandate the use of a lottery to award seats.

Russell Johnston, the state’s acting education commissioner, said in the recent hearings that the disparities have persisted in the years since the changes. In 2024, “across the board admittance rates were lower in nearly all the schools for specific student populations,” he said – pointing to rates for English learners, special needs students, students of color, and low-income students.

“We are having a discussion that goes beyond legal compliance,” Johnston said. “This is a question that’s really about access to public education.”

Critics say the selective criteria are locking out some of the students who would benefit most from voc schools’ focus on applied, hands-on learning – those who may have struggled academically in the traditional classroom setting during middle school or had attendance problems as a result. Given the high demand for vocational schools, leaders at these schools say it’s important to ensure that these seats go to students who are ready to take on the demands of their combined program of academic and vocational courses.

Testifying at Monday night’s hearing, Stephen Zrike, superintendent of the Salem Public Schools, said there are homeless students or those arriving from other countries who will never have a chance at gaining admission to the regional vocational school – Essex North Shore Agricultural & Technical School – under selective admission criteria.

“I don’t believe that public schools should have admission criteria that put up barriers for the most marginalized students,” he said.

At Tuesday’s state board meeting, Heidi Riccio, the superintendent of Essex North Shore, defended screening applicants based on discipline history, saying it’s a safety issue for schools. “This is essential in a vocational school that gives students weapons upon arrival,” she said, referring to the use of chainsaws and nail guns at the schools. What’s more, she said, traditional  high schools like Salem High also use discipline history in admissions.

Salem High School’s website does say serious discipline infractions could lead to a student being disqualified from pursuing a particular vocational pathway, but this isn’t an admissions standard for acceptance – it applies to student behavior while in a vocational course. In an interview on Tuesday, Zrike, now in his fifth year as Salem superintendent, said all high schools are able to access vocational courses. He called raising the policy a “red herring,” and said, in practice, that there hasn’t been a single student expelled from a voc program at Salem High during this time in the district. “Nobody is being restricted from [vocational programs] here,” he said.

“They’re trying to protect the status quo,” Zrike said of vocational schools’ effort to maintain use of selective admission criteria. “I get charged up about this because it’s so obvious to me – the inequities here.”

Patrick Tutwiler, Gov. Maura Healey’s secretary of education, who sits on the board, seemed to share that view.

“It’s hard to look at that data, as an educator, as a man of color, as a leader in this state who leads with a set of core values, principally anchored in this idea of equity,” Tutwiler said at the hearing held last Friday. “We talk a lot about this idea that our job is to create conditions for all students to realize their dreams, and when you look at slides that clearly show a lack of access for certain students, that’s hard to look at.”

“I feel a moral obligation to continue this conversation in earnest, but more importantly, to do something about it,” he added. “And I hope my colleagues on the board feel the same way.”

This first appeared on and is republished here under a Creative Commons license.

In 2020, the Fairfax district in northern Virginia changed its admissions criteria to better reflect the racial makeup of students in the county. Last May, the U.S. Court of Appeals for the Fourth Circuit .

The Supreme Court offered no explanation for its refusal to hear the case. But from Justice Samuel Alito, backed by Justice Clarence Thomas, called the lower court’s ruling in Coalition for TJ v. Fairfax County School Board, “a virus that may spread if not promptly eliminated.” 

“What the Fourth Circuit majority held, in essence, is that intentional racial discrimination is constitutional so long as it is not too severe,” Alito wrote. “This reasoning is indefensible, and it cries out for correction.”

The Supreme Court’s earlier ruling against Harvard and the University of North Carolina over affirmative action-based admissions left some districts in limbo over whether K-12 integration efforts based on family income, rather than race, could pass legal muster. Echoing arguments similar to those that Students for Fair Admissions made against affirmative action in higher education, the Fairfax parents said admissions changes at Thomas Jefferson High School for Science and Technology make it more difficult for Asian-American students to be accepted. 

Before Fairfax changed its admissions rules, about three-fourths of the school’s students were Asian Americans. District leaders eliminated a rigorous test for applicants and a $100 fee. And they reserved seats at the school for the top 1.5% of 8th graders in each middle school. Coalition for TJ said the new rules were racially biased because the proportion of Asian American students accepted dropped to 54%.

“The Supreme Court missed an important opportunity to end race-based discrimination in K-12 admissions,” Joshua Thompson, a senior attorney with the conservative Pacific Legal Foundation, said in a statement Tuesday. The firm represents the Fairfax parents who sued. “Schools should evaluate students as individuals, not as groups based on racial identity.” 

But some integration experts say the court’s decision not to hear the case confirms that using socioeconomic status in admissions is constitutional. Richard Kahlenberg, a fellow at the Progressive Policy Institute, called the court’s denial “a victory for poor and working class students of all races.” On behalf of the plaintiffs in the cases against Harvard and UNC, he testified in favor of socioeconomic integration, but said Tuesday that both that earlier opinion and the court’s denial of the TJ case fit with an ongoing public consensus in “support of racial diversity, but in opposition to using racial preferences to get there.”

“The decision of seven justices not to hear the case makes good sense because for three decades, even the most conservative justices have been urging educational institutions to use precisely the kind of race-neutral strategies that Thomas Jefferson High School employed,” he said. 

Supporters of the admissions changes note the current , 3.9, is higher than it was under the previous policy.

“We have long believed that the new admissions process is both constitutional and in the best interest of all of our students,” Karl Frisch, chair of the district’s board, said in a statement. “It guarantees that all qualified students from all neighborhoods in Fairfax County have a fair shot at attending this exceptional high school.”

The ‘best public schools’

The Supreme Court’s denial of the TJ appeal is the second blow in three months to Pacific Legal’s efforts to curb what it sees as discrimination against white and Asian American students in K-12. In December, the U.S. Court of Appeals for the First Circuit ruled against the firm’s clients in a similar case over selective schools in .Ìę

Following the opinion’s release, Erin Wilcox, another Pacific Legal attorney, said it was disappointing that just six months after the court’s affirmative action ruling, “the First Circuit held 
 that it’s perfectly legal for Boston to use racial proxies to determine who is admitted to some of its best public schools.”

Pacific Legal plans to go back to the High Court in the next few weeks to ask the justices to examine many of the same issues it objected to in the TJ case. 

But Stefan Lallinger, executive director at Next100, a progressive think tank affiliated with The Century Foundation, called the First Circuit’s decision “a shot in the arm to districts that understand the value of diversity,” but were left “confused or worse, afraid, to take bold and affirmative steps” after the Supreme Court’s opinion on Harvard and UNC.

The Boston Public Schools made changes similar to those in Fairfax. The district replaced a merit-based admissions policy for its exclusive “exam” schools with one that drew students with high GPAs from all ZIP codes. (The system was later changed to reflect — small geographic areas within a county.) 

The Boston Parent Coalition for Academic Excellence Corp., a nonprofit, sued last year over the policy change, which has led to more Black and Hispanic students attending the schools.

Pacific Legal is also representing plaintiffs suing over criteria for entrance to highly competitive schools in , and . And in January, the firm filed on behalf of a group of New York parents over a statewide that prepares students to study STEM fields in college. The plaintiffs argue that the criteria favors Black, Hispanic, Alaskan Native and American Indian students regardless of their family’s income.

In Philadelphia, the American First Legal Foundation, another conservative law firm, after the district dropped merit-based application requirements, such as recommendation letters, attendance and test scores, for competitive schools. District leaders moved to in which students from certain ZIP codes receive preference. The system targets neighborhoods with the lowest representation of students who previously accepted offers to attend those schools.Ìę

The case is currently pending in federal district court.

Legislation banning Virginia’s public colleges and universities from providing special treatment in admissions decisions to students related to alumni and donors is on track to head to Gov. Glenn Youngkin later this session.

On Tuesday, the Virginia House joined the Senate in passing on a unanimous vote. Both bills, which are identical, must now pass in the opposite chambers before they are sent to the governor for his approval.

Youngkin spokesman Christian Martinez has signaled the governor is likely to sign the measures.

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“The governor will review any legislation that comes to his desk, but believes admission to Virginia’s universities and colleges should be based on merit,” he said.

The proposed ban comes after the U.S. Supreme Court ended affirmative action at higher education institutions nationwide in June. Since the court’s ruling that race-conscious admissions policies at Harvard University and the University of North Carolina were unconstitutional, schools in the commonwealth have begun changing their admissions policies.

by think tank Education Reform Now found “most beneficiaries of legacy preferences are white.” It also identified Virginia as one of five states where a majority of public colleges and universities offer admissions advantages to the children of alumni.

“All that House Bill 48 says is that in considering admissions to college and our public universities here in the commonwealth of Virginia, whether your parents went there or whether your parents are donors to the institution will play no role in deciding who is accepted to the college,” said Del. Dan Helmer, D-Fairfax, who is carrying the House bill, during a subcommittee meeting earlier this month.

Both Democrats and Republicans have supported the change.

“I think it’s absolutely discriminatory to grant special privileges to people based on what their parents did, what they gave, where they went to college,” said Del. Thomas Garrett, R-Goochland, at the same meeting.

Garrett said he’s supporting the proposal to “address discrimination and create a level playing field for all Virginians.”

Last week, the Senate version of the , patroned by Sen. Schuyler VanValkenburg, D-Richmond, also passed with unanimous support.

Education Reform Now says more than 100 colleges and universities have ended legacy admissions since 2015, but 787 still used the practice as of 2020.

is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Virginia Mercury maintains editorial independence. Contact Editor Sarah Vogelsong for questions: info@virginiamercury.com. Follow Virginia Mercury on and .

Although the U.S. Supreme Court effectively ended affirmative action in college admission decisions with its June 29 decision, the ruling will not affect tribal colleges and universities, administrators said.

The Supreme Court effectively ruled 6-3 in the case Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.

The ruling means most colleges and universities can no longer consider race when it comes to the admission process.

However, that won’t affect tribal institutions.

“Nothing is going to change at tribal colleges, and tribal colleges are open-door institutions. They’ve always been open-door institutions. That’s going to stay their policy,” said president and CEO of the American Indian Higher Education Consortium Carrie Billy, DinĂ©. “They are place-based institutions, culturally grounded, chartered by their tribes or the federal government, but serving the local community, and they’re going to continue serving that community regardless of this decision.”

It’s difficult to compare Native student enrollment at tribal colleges and universities to mainstream institutions, Billy said.

“TCUs are required to collect information based on a student’s enrollment in a federally recognized Indian tribe,” she said. “Only a handful of other institutions are required to collect this type of data, and no institutions except TCUs are required by the federal government to verify that they are only counting as ‘American Indian/Alaska Native’ those students who can document their enrollment status.”

Most, if not all, mainstream colleges and universities rely entirely on self-reporting when it comes to determining tribal identity of students. This means if a Native student doesn’t indicate they are a tribal citizen, then they are not counted as such. This policy can be flawed, Billy said.

Nonetheless, the high court’s decision will impact Native students attending mainstream institutions, which concerns Billy.

“Our concern is for those students, you know, our children, grandchildren, brothers, sisters, parents, who attend other institutions of higher education and also for you know, just for all people of color, and underserved communities. Everyone deserves an equal access to affordable higher education,” she said. “So we’re very concerned about that.”

Data from 2016 from the American Indian Higher Education Consortium showed that tribal colleges and universities accounted for 67 percent of American Indian/Alaska Native student enrollment in higher education compared to mainstream universities that collected similar data.

Billy added that she has not heard much from Native students, which she attributes to the decision having been handed down during the summer, and she expects to hear more after the school year starts.

At the time of the decision, national Native organizations shared their disapproval. The American Indian Higher Education Consortium said the court essentially attempted to “slam doors of higher education shut” but promised that its advocacy on behalf of Native students would not stop.

“We were here before affirmative action, and we will be here – strong, resilient, and sovereign – after the Supreme Court’s decision this week,” a  from the organization said.

Fawn Sharp, National Congress of American Indian president, Quinault, echoed that sentiment, calling the decision “exceptionally disappointing.”

“While everyone deserves to be considered on their merits, it does more harm than good to ignore the fact that Native people were subject to genocide, colonization, and assimilation,” Sharp said in a June 30 . “Only when these realities are confronted head-on will meaningful progress be made, which is why the National Congress of American Indians will continue to fight to bring visibility to these issues and look for solutions to ensure future generations have access to the education so many of our past generations did not.”

The decision comes closely after a trend in the last couple of years in which universities or states adopted tuition waiver policies directed specifically at enrolled tribal citizens. Billy said these waivers are tailored specifically to Native Americans not as a racial group, but as a nod to the political relationship between the states and the tribes.

A number of states and higher education institutions have long offered some type of tuition waiver for Native students. Both the  and  university systems offer a waiver.

The University of Maine has had one in place since the 1930s, and more recently, the University of Arizona offered free tuition to Native students enrolled in a federally recognized tribe in Arizona. Oregon State University offers in-state tuition to any student of a federally recognized tribe.

“The tuition discounts that state governments enact are for members of either federally recognized tribes or state-recognized tribes in their state that’s, again, a political relationship. It’s not a race-based program,” Billy said. “So this decision should have no effect on them.”

Partnerships between public institutions and tribes are going to be important moving forward. Appearing on  in early July to discuss the decision, Julia Wakeford, policy director for the National Indian Education Association, said the ruling will show how serious colleges and universities are about ensuring diversity on their campuses.

“A number of these universities and colleges have come out saying that they stand by and will do whatever they can within the letter of the law, to make sure that there remains diversity on their campuses,” said Wakeford, who is Mvskoke and Yuchi.

This story was originally published at .

“What cannot be done directly cannot be done indirectly,” Chief Justice John Roberts wrote in the in the case against Harvard University.

Several conservatives are glomming on to that quote as a warning to school districts that rely on admission criteria they claim is race-neutral even as they pursue a goal of increasing the number of Black and Hispanic students they accept.

“Eliminating racial discrimination means eliminating all of it,” said Erin Wilcox, an attorney with the Pacific Legal Foundation. The right-leaning nonprofit law firm represents families in four East Coast districts suing over policies that determine who gets into competitive schools.

This summer, the firm will ask the Supreme Court to hear against the Fairfax County Public Schools in Virginia over changes to the admissions policy at the prestigious Thomas Jefferson High School for Science and Technology.

“Treating students based on their experiences as individuals, not on the basis of race, is what we’ve been fighting for,” Wilcox said. 

Pacific Legal, part of the conservative , is making the same argument on behalf of plaintiffs in Montgomery County, Maryland, New York City and Boston. In revising their selection processes to pursue greater equity, the complaints say district leaders openly expressed a desire to limit the numbers of white and Asian-American students attending those schools.

Advocates for racially balanced schools, however, call the firm’s argument far-fetched and maintain there’s still legal backing for policies that take socioeconomic status into account when admitting students. K-12 leaders, they argue, those efforts out of concern for what the courts may do.

“Rather than try to guess how this [ruling] affects them, I think schools and districts should continue to promote diverse, equitable learning environments for students because research tells us that’s what’s best for kids,” said Stefan Lallinger, executive director at Next100, a progressive think tank affiliated with The Century Foundation. 

Racial segregation is “pernicious,” he said, and with the end of affirmative action in college admissions, K-12 schools to address educational inequities. 

“For hundreds of years in some cases, selective institutions have discriminated against people of color,” he said. “If the Pacific Legal Foundation’s argument is that there are no legal remedies available 
 we’re really in trouble.”

‘Proxy discrimination’

Amid the racial reckoning following George Floyd’s murder in 2020, in which districts nationally tried to expand educational opportunities for minority students, Fairfax leaders eliminated a rigorous test for applicants and a $100 fee. They reserved seats at the school, known as TJ, for the top 1.5% of 8th graders in each middle school. 

“We firmly believe this admission plan is fair and gives qualified applicants at every middle school a fair chance of a seat at T.J.,” John Foster, an attorney for the Fairfax County Public Schools, said in May when the U.S. Court of Appeals for the 4th Circuit ruled against Coalition for TJ, the plaintiff in the case. 

But that’s no consolation for families who thought their children had a good shot of being admitted to TJ under the old system. Stephanie Lundquist-Arora, a member of the coalition, said her oldest son, who is half Asian, did well in accelerated math classes and took three semesters of engineering. 

“He should have been a competitive candidate,” she said.

But after making the waitlist, his application for this fall was rejected. Lundquist-Arora has two younger sons — one of which is taking honors algebra in seventh grade — but she’s concerned they could also be shut out of what is considered high school.

Although Asian-Americans still make up the majority of students at the school, their enrollment numbers dropped from 73% to 54% in the year after the metrics changed — evidence, Wilcox argued, that the new policy is biased.

The complaint offers text messages from Fairfax County school board members alluding to their policy’s “anti asian [sic] feel” to show that race-neutral admissions can be “proxy discrimination.”

Similar disparaging remarks from board members about white students are part of the complaint in the , currently before the U.S. Court of Appeals for the 1st Circuit. The Boston Parent Coalition for Academic Excellence Corp., a nonprofit, sued last year when the district replaced an admissions policy for its prestigious “exam” schools based solely on merit with one that drew students with high GPAs from all ZIP codes. (The system is now based on , small geographic areas within a county.)

In a text exchange cited in court documents, former board member Lorna Rivera wrote, “I hate W[est] R[oxbury],” referring to a predominantly white neighborhood. Alexandra Oliver-Davila, another former member, responded: “Sick of westie whites.” resigned after being caught on Zoom mocking ethnic-sounding names. 

But advocates who support the new policy say the comments reflect years of frustration with the district prioritizing the exam schools and offering fewer resources to schools serving Black and Hispanic students.

Ruby Reyes, director of the Boston Education Justice Alliance, said affluent white and Asian parents might think their children have lost the chance to get into those elite schools because of the policy change.

“It isn’t a loss,” she said. “It’s a beautiful thing. The admission policy has had a great impact in terms of diversity.”

In addition to attending the schools, the rates of students with disabilities and English learners receiving invitations to attend has also increased as a result of the new policy.

Families at one of the schools, however, oppose to move O’Bryant School of Math and Science — the most racially diverse of the three exam schools — from its current Roxbury location, a historically Black neighborhood, to West Roxbury, which is predominantly white. 

The new location would provide the school with much-needed space, but with fewer public transportation options in West Roxbury, the change could affect which students choose to attend, Reyes said.

In Maryland’s Montgomery County Public Schools, leaders amended the admissions process for four sought-after magnet middle schools. Under a new provision, the selection process favors high-achieving students who don’t attend school with a lot of other gifted peers.

As a result, high-performing Asian-American students, who tend to be concentrated in a small group of elementary schools, are less likely to be admitted while more Black and Hispanic students who attend schools spread across the district get in, said.

Finally, Pacific Legal represents who say the district has limited their children’s opportunities to attend any of nine top-ranked high schools, such as Stuyvesant High, Bronx High School of Science and Brooklyn Technical High School. Students are admitted based on entrance exam scores, but in 2020, former Mayor Bill de Blasio increased the number of students considered for admission from low-income schools that predominantly serve Black and Hispanic students. 

The plaintiffs appealed a lower court ruling in favor of the city to the 2nd Circuit Court of Appeals, where it awaits a decision. 

‘Mere reflections upon race’

Joshua Dunn, executive director of the Institute of American Civics at the University of Tennessee, is among those who think that if district leaders aimed to reduce the number of white and Asian-American students admitted, their race-neutral policy under this Supreme Court.

The ruling in favor of Students for Fair Admissions, the advocacy group that sued Harvard and the University of North Carolina, “reinforces that racial balance can’t be the goal and the [Fairfax] board made it clear that’s what it was after,” Dunn said. “Bottom line, I don’t see how the appellate decision survives in light of the court’s ruling and the factual record.”

But others agree with the 4th Circuit, which said that texts or other statements expressing a desire to increase diversity aren’t enough to “inflict adverse effects” on a particular racial group. David Hinojosa, director of the Educational Opportunities Project at the Lawyers’ Committee for Civil Rights Under Law — which represented UNC before the court — called Pacific Legal’s argument an “extreme colorblind interpretation.”

“Nowhere in the Harvard/UNC opinion does the court suggest that mere reflections upon race are unlawful,” he said. 

Richard Kahlenberg, a non-resident scholar at Georgetown University’s McCourt School of Public Policy and an expert on integration, added that districts are on firm legal ground if their admission policies promote the selection of promising students who have shown determination despite poverty or other obstacles.

He points to from Justice Clarence Thomas defending such programs. Thomas reiterated that position in his concurring in the Harvard/UNC ruling.

“Individuals are the sum of their unique experiences, challenges, and accomplishments,” he wrote. “What matters is not the barriers they face, but how they choose to confront them.”

Kahlenberg, who served as an expert witness on race-neutral policies for Students for Fair Admissions, suggests the court might take the TJ case to further clarify what schools can still do to increase diversity. But he added, “The high court does not have an appetite for going further and eliminating preferences based on socioeconomic status or geography.”

WASHINGTON — The U.S. Supreme Court on Thursday ruled that two prominent universities’ consideration of race in acceptances violated the U.S. Constitution, effectively reshaping the role of affirmative action in the college admissions process throughout higher education.

, Chief Justice John Roberts, writing for the majority, wrote that the admissions processes at Harvard University and the University of North Carolina violate the equal protection clause of the 14th Amendment.

“Because Harvard’s and UNC’s admissions programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points, those admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause,” Roberts wrote.

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“Many universities have for too long wrongly concluded that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned, but the color of their skin. This Nation’s constitutional history does not tolerate that choice,” Roberts continued.

Because Harvard is a private institution and UNC is a public institution, this decision affects higher education across the board.

The three liberal Justices, Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson dissented.

Jackson recused herself from the Harvard portion of the decision.

Jackson participated in the debate of the UNC case but not the Harvard case because she is a graduate of Harvard College and Harvard Law School and recently sat on the Harvard Board of Overseers, which is one of the two governing boards for Harvard University.

The decision stems from a 2014 lawsuit against Harvard College and a separate lawsuit against the University of North Carolina. The two suits sought to overturn Grutter v. Bollinger, which is currently how universities use race-conscious admissions.

Harvard and UNC have argued that race is one of the many factors that the universities consider in admissions, along with socioeconomic status and extracurricular activities, and they make admission decisions within the guidelines set by Grutter.

Both suits were filed by a group called Students for Fair Admissions, which is funded by Edward Blum, a conservative legal activist who has launched multiple lawsuits over what he sees as racial preferences in school admissions.

For the Harvard case, the group alleges that Harvard violated Title VI of the Civil Rights Act because Asian American applicants are less likely to be admitted compared to similarly qualified Black, Latino or Indigenous applicants. Title VI bars institutions that receive federal funding from discrimination on the basis of race.

The UNC case argues that because the university takes into consideration race in its admissions process, it violates the 14th Amendment’s equal protection clause.

Federal courts rejected Students for Fair Admissions’ arguments and sided with the universities.

Affirmative action  from the civil rights movement of the 1960s, when President Lyndon B. Johnson issued an executive order barring discrimination in the workplace based on race, religion — and later gender — by those entities that received federal contracts and subcontracts.

There are nine states that have banned race-based affirmative action from being implemented in public institutions: Florida, California, Michigan, Nebraska, Arizona, New Mexico, Oklahoma and Idaho. Washington state rescinded its ban on affirmative action in 2022.

Oral arguments

, members of the court’s conservative wing, who now make up a 6-3 majority, questioned if it is legal for universities to consider race and for how long such policies should endure, pointing to a 2003 case that predicted that affirmative action would no longer be needed in 25 years.

The case, Grutter vs. Bollinger, allowed the limited use of race to be considered in college admissions, and held that race was merely one of many considerations given in an applicant. The case allowed the University of Michigan Law School to consider race in its admissions process in order to help create a diverse student body.

Justice Clarence Thomas, a conservative and the only Black man on the Supreme Court, pressed lawyers defending the schools’ policies on how diversity benefited education.

“I didn’t go to racially diverse schools but there were educational benefits. And I’d like you to tell me expressly when a parent sends a kid to college that they don’t necessarily send them there to have fun or feel good or anything like that. They send them there to learn physics or chemistry or whatever they’re studying,” Thomas said to Ryan Park, the attorney representing UNC. “So tell me what the educational benefits are to that?”

During oral arguments in October of last year, 

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One likely effect is obvious. “There is going to be some closing of doors,” said Halley Potter, a senior fellow at The Century Foundation, a progressive think tank. “It’s going to be a landscape in which it’s harder to secure access in most competitive schools.” 

But further down the line, a ruling against schools that factor race in admissions could affect a host of other academic mainstays, from scholarships to the centrality of tests like the SAT and ACT.

The ruling might not end diversity efforts outright. Granting preferential admission to low-income students, children of single parents or those from communities where students often don’t go to college could achieve similar results, experts say, without courting legal trouble. 

“ don’t want race used in admissions, but Americans do want selective institutions to be racially diverse,” said Richard Kahlenberg, a non-resident scholar at Georgetown University’s McCourt School of Public Policy, and an expert on integration. He thinks the court’s decision could reflect that paradox. “They don’t want to be seen as simply dismissive of the aspiration of racial diversity.”

The court is expected to issue decisions in two lawsuits — brought by Students for Fair Admissions against Harvard University and the University of North Carolina — later this month. The plaintiff in both cases argues that the weight universities place on race in admissions violates anti-discrimination laws and puts Asian American students at a disadvantage. 

‘Next generation’

While the cases don’t deal directly with K-12 schools, the high court’s decision could elevate the importance of a recent lower court ruling rejecting a legal challenge to diversity efforts at an elite Virginia high school. Thomas Jefferson High School for Science and Technology in Alexandria, Va., removed a rigorous admissions test and a $100 application fee, and reserved seats at the school for the top 1.5% of 8th graders in each middle school. Coalition for TJ, the plaintiff in the case, called the revised admissions criteria discriminatory against Asian American students. 

The 4th Circuit Court of Appeals rejected that view. “The policy challenged here is not just race-neutral: It is race blind,” Fourth Circuit of Appeals Judge Toby Heytens wrote in the

The conservative Pacific Legal Foundation, which represents the plaintiffs, said board members’ desire to increase the number of Black and Hispanic students at the school motivated the new policy. They plan to ask the Supreme Court to hear the lawsuit. 

Kahlenberg, who testified on behalf of Students for Fair Admissions about race-neutral alternatives, called the TJ case a “next generation issue.”

If the Supreme Court rules that universities can no longer ask applicants to identify their race, they might see the Fairfax case as a chance to “spell out in further detail the line between what is acceptable and unacceptable,” he said. “I think the answer will be that the TJ program is perfectly fine.” 

‘Formative experiences’

The college admissions industry, meanwhile, has been preparing for the end of affirmative action for months. Beginning in August, for example, colleges can hide a student’s race if it’s included in the , a uniform application for undergraduate admissions accepted at more than 1,000 colleges and universities nationwide.  

The American Association of Collegiate Registrars and Admissions Counselors earlier this year to review all of their policies and practices related to diversity, equity, and inclusion and to examine any area, such as mission statements and recruitment efforts, where race is a factor — “no matter how minor” — to determine if changes are needed.

Organizations that focus on high school graduation and college enrollment say they plan to continue to identify students who would be the first in their families to attend college, regardless of race. 

“In some ways for us, it will be business as usual — to serve underserved students. That’s been really the heart of our work long before this became a hot-button issue,” said Pam Johnson Davis, director of fellow support for OneGoal, a nonprofit that works in eight states to increase graduation and college enrollment rates. Eighty-six percent of the students served by the organization are Black or Hispanic. She supports 400 “fellows” in the Chicago area who are already in college or another postsecondary program.

If students are barred from bringing up their race even in their admissions essays — a hypothetical scenario that came up during Supreme Court — teachers at OneGoal schools would still encourage students to write about barriers they overcame to pursue education, Davis said.

Facing discrimination, raising younger siblings, translating for parents who don’t speak English — “these are really formative experiences in students’ lives,” she said. “Their stories will be shaped by their cultural and socioeconomic backgrounds.”

Stephen Barker, a spokesman for the organization, added that opportunities for Black and Hispanic high school students to earn college credit could become more important for colleges and universities if the court strikes down affirmative action in admissions. 

“Institutions need to double down on those partnerships [with districts] if they want to keep that diversity going in a race-neutral way,” he said.

But he said it’s hard to predict what importance universities might place on other aspects of a student’s application, including GPAs, honors classes, and SAT and Advanced Placement exam scores if race no longer factors into the equation.

The potential end of affirmative action in admissions a growing movement away from requiring the SAT or ACT for admission, with some researchers and advocates for educational equity arguing the tests are biased against Black and Hispanic students and . According to FairTest, an advocacy group, are now test-optional or don’t even accept the exams.

But others say that criticism of the tests is misguided and that they still serve as a good predictor of how well students will perform in college. Adam Tyner, national research director at the Thomas B. Fordham Institute, a conservative think tank, said are “deeply vetted” to remove content that might disadvantage minority students. GPAs, he added, are less controversial, but large remain.

He doesn’t think the test-optional trend is only about removing barriers for Black and Hispanic applicants. Admissions officers may have other motivations, he said.

“Either [universities]think that the exams aren’t so important or 
 they, for financial reasons, desire an excuse for admitting more affluent students with less academic preparation,” he said.

With or without admissions exams, the end of race-conscious admissions would put more pressure on K-12 counselors serving Black and Hispanic students, Kahlenberg said.

“For years, the [private] prep school kids have had the upper hand. There are fewer students per counselor and they can put time into writing impressive letters [of recommendation],” he said. “Here’s an opportunity for public school counselors to paint a picture of students who have done remarkably well despite the barriers.”

If the tenor of the sometimes pointed exchanges are any indication, the outcome may hinge on how long universities expect to employ race-conscious admissions before such practices are no longer needed.

In arguments that lasted close to five hours, the court heard a pair of high-profile cases brought by a pro-Asian organization against Harvard and the University of North Carolina.

During the UNC case, which was heard first, attorneys representing the university argued that students are not admitted based on checking a racial box; rather, they look “holistically” at multiple factors, said Ryan Park, solicitor general of North Carolina, who insisted that race plays a “minimal” role in UNC’s decisions. 

“If it’s irrelevant, then you shouldn’t care whether it’s ruled out,” Justice Samuel Alito said.

But Justice Ketanji Brown Jackson, who was only on the bench for the UNC arguments, repeatedly homed in on the notion that the universities only employed race as one criteria among many. 

“The university is not requiring anybody to give their race. When you give your race, you’re not getting any special points. It’s being treated just on par with other factors in the system,” Jackson said. “No one’s automatically getting in.”

At a time when racial issues are at the forefront of educational debates and school politics, the historic cases reflect how polarizing attempts to address past discrimination have become. The court’s lengthy gauntlet Monday is also an indication of the far-reaching implications of its decisions in the two cases, which are expected in June.

Advocates for affirmative action argue it’s important for colleges and universities to consider race as one factor in their efforts to create a diverse student body, especially since K-12 schools for Black and Hispanic students. But the plaintiffs, Students for Fair Admissions — with strong backing from Republicans and conservative organizations — say such policies are a form of illegal racial discrimination that put Asian students at a disadvantage. 

The student group wants the court to overturn Grutter v. Bollinger, a 2003 ruling that upheld race-based admissions at the University of Michigan Law School. They argue that allowing such policies to continue violates Title VI of the Civil Rights Act, which applies to any institution receiving federal funds, and the Constitution’s 14th Amendment, which applies to UNC as a public university. 

“Grutter assumed that race would only be a plus. But race is a minus for Asians, a group that continues to face immense racial discrimination in this country,” said Cam Norris, representing the group in its lawsuit against Harvard. Asian students, he said, “should be getting into Harvard more than whites, but they don’t because Harvard gives them significantly lower personal ratings.”

He said that Harvard is not socioeconomically diverse and that removing race-conscious admissions would actually increase opportunities for Black students. But Seth Waxman, representing Harvard, disagreed with Norris’s statement that 80% of students at the university come from wealthier families. The university, he said, has increased financial aid as a way to reduce its reliance on racial preferences. 

In the Harvard arguments, the conservative justices focused on a preliminary “personal rating” the university’s 40 admissions counselors apply to applicants as a form of “triage” to help sift through over 60,000 applications for just 1,600 spots at the elite university. Waxman showed the justices a chart that he said proves the role of race was so small, it was almost zero.

“So there is only a little racial discrimination,” Chief Justice John Roberts quipped.

In the Grutter decision, former Justice Sandra Day O’Connor suggested that 25 years in the future — 2028 — the use of racial preferences would no longer be necessary. The conservative justices repeatedly pressed the Harvard and UNC attorneys to give an “endpoint.” 

Representing the Biden administration, Solicitor General Elizabeth Prelogar said the “arc of progress” has been slower than O’Connor envisioned and that universities should be diligent in using alternatives to race in their admission decisions.

Reacting to Monday’s arguments, Joshua Dunn, a political science professor at the University of Colorado, Colorado Springs, called the responses to the justices’ questions on this issue disappointing.

The lack of an endpoint “will allow the conservatives to say that schools have no intention of ever ending it, in violation of Grutter,” he said.

Both Waxman for Harvard and Park for UNC said that race-neutral alternatives have been insufficient in creating a diverse student body. Removing the option to consider race would reduce the percentage of Black students admitted to Harvard from 14% to 10%, Waxman said.

The justices — even conservatives Clarence Thomas and Amy Coney Barrett — raised the possibility of using race only in the context of a student’s life experiences.

“What if an applicant wrote an essay about how integral their racial identity was to them as a source of pride and the cultural attributes of their racial heritage were very important?” Barrett asked. “Would that be OK?”

But Thomas expressed some skepticism that diversity offered a value in and of itself. “I’ve heard the word diversity quite a few times, and I don’t have a clue what it means,” he said.

‘The bigger question’

This line of questioning suggests the court might not be as quick to end all racial preferences in admissions as many assumed, said Art Coleman, managing partner of EducationCounsel, a consulting firm.

“There is a majority of the court that is uncomfortable at some level with the notion of the consideration of race in admissions,” he said. “But I think the bigger question is what they do about that.”

While some observers have questioned whether the court would ultimately end even race-neutral, voluntary integration programs in K-12, Coleman said he doesn’t see the justices leaning that way. Instead, the legal question for the court is whether a student gets some “material benefit,” like admission or a scholarship, because of their race. That, he said, could have implications for “college counselors who are guiding students to and through the admissions process.” 

The liberal justices pushed attorneys for the plaintiffs to explain whether eliminating racial preferences in college admissions would result in a lack of racial diversity across society as a whole. Prelogar, representing the U.S. government, said during the UNC hearing that it is “critically important” to have diversity in the military, and then added during the Harvard arguments that removing race-conscious measures would have “destabilizing ramifications in just about every important industry in America.”

The two hearings offered a history lesson on the nation’s unfinished work to redress its racist past. Speaking on behalf of UNC, David Hinojosa, director of the Educational Opportunities Project at the Lawyers’ Committee for Civil Rights, said Black students can be discouraged from applying to the university when they see Confederate statues on campus or witness demonstrations by white supremacy groups. 

The plaintiffs argued that the court’s decision in Brown v. Board of Education, ending desegregation in K-12, should have applied to race-conscious admissions in college. That prompted a strong response from Prelogar.

“There is a world of difference between the situation this court confronted in Brown, the ‘separate but equal’ doctrine that was designed to exclude African Americans based on notions of racial inferiority,” she said. The court recognized, she said, that such discrimination affected children’s “hearts and minds in a way unlikely ever to be undone.”

While it is focused on higher education, the court’s ruling in those cases is bound to filter down to K-12 schools.

“Despite the best efforts of school districts 
 to create more diverse schools, racial segregation has increased over the last two decades. As a result, educational inequities persist,” according to filed by the Council of the Great City Schools in defense of admissions policies at Harvard University and the University North Carolina.

At least 18 million students attend K-12 schools where more than three-quarters of the enrollment is of a single race, a recent report showed, and 14% of students attend schools where at least 9 out 10 of students are of the same race.

Students for Fair Admissions, the plaintiffs in the case, are challenging admissions criteria at those universities they claim discriminate against Asian students. Admissions, they say, should be based on merit.

They want the court to overturn a in Grutter v. Bollinger that upheld race-based admissions at the University of MIchigan Law School. In that ruling, former Justice Sandra Day O’Connor foresaw a nation in which “the use of racial preferences will no longer be necessary.” The Biden administration, , and advocates for Black and Hispanic students argue that affirmative action is even more essential today because schools are still segregated and the promise of integration under Brown v. Board of Education “remains unfulfilled.”

Supporters of affirmative action expect the court’s six conservative justices to side with the plaintiffs. While this will be the first time Justice Ketanji Brown Jackson hears an education case, she’s one of just three liberal justices. And she’ll only sit on the bench for the UNC arguments, having recused herself from the Harvard case because she served on the school’s Board of Overseers until this past June. 

“I think it is highly likely that the court takes a position that disallows the use of race whatsoever in higher education admissions,” said Stefan Lallinger, a senior fellow at The Century Foundation, a progressive think tank. Such a ruling, he said, could put “a final nail in the coffin of efforts by colleges and universities around the country to directly ensure that all of their students benefit from a racially diverse student body.”

Most experts see two routes for the court to take in this case. First, it could follow the precedent set for K-12 schools in a 2007 case against Seattle Public Schools and the Jefferson County Public Schools in Kentucky. 

In , the court ruled that school districts couldn’t explicitly use race in their efforts to create more diverse schools. But separately, former Justice Anthony Kennedy wrote that districts still had a “compelling interest” to pursue racial integration. Since then, districts have moved toward based on family income. 

Noting the court’s recent decision to overturn the constitutional right to abortion, many predict that the six conservative justices won’t be bound by precedent. 

“It should be noted that the only reason the court salvaged any use of race in the [Parents Involved] case was the moderation of Justice Anthony Kennedy,” Lallinger said. 

That’s why he thinks it’s possible the court could take a second approach and rule as unconstitutional all race-conscious efforts to achieve diversity.

“The current court does not have an Anthony Kennedy,” Lallinger said. 

‘Pressure to discriminate’

In the wake of the Parents United opinion, many conservatives continue to hold that some of the admissions policies K-12 schools use for competitive schools are discriminatory.

In the Fairfax County, Virginia, schools, for example, the libertarian Pacific Legal Foundation is representing plaintiffs who sued the district over changes to acceptance criteria at the Thomas Jefferson High School for Science and Technology. The district dropped a rigorous admissions test and a $100 application fee, and reserved seats for the top 1.5% of 8th graders in each middle school. Board members expressed hope that the changes would increase representation of Black and Hispanic students at the school, which the plaintiffs argued was illegal “racial balancing.”

“We’re all entitled to each be judged on our own individual characteristics, not on the basis of our membership in a group,” said Wen Fa, a senior attorney at the law firm, which is also challenging similar admission policies in New York City, Boston and Montgomery County, Maryland.

In supporting Students for Fair Admissions, the nonprofit Parents Defending Education wrote that the 2003 decision in Grutter v Bollinger has “spawned increasing racial discrimination” that has spread to the K-12 system.

“As long as Grutter remains the law, K-12 schools will face an inexorable pressure to discriminate based on skin color,” the brief said.

But even those challenging the university policies point to integration efforts based on family income as the direction for higher education, said Richard Kahlenberg, a researcher who wrote on the issue. He served as an for the plaintiffs when the case was in a lower court, and he doesn’t think the justices have hinted that they would rule out all efforts to achieve diversity.

“Not a single Supreme Court justice has indicated that they entertain that extreme position,” he said. 

He pointed to Clarence Thomas’s in 1991, in which the justice defended programs that give preference to students who overcome obstacles. 

“The kids could come from any background of disadvantage,” Thomas said. “The kid could be a white kid from Appalachia, could be a Cajun from Louisiana, or could be a Black kid or Hispanic kid from the inner cities or from the barrios, but I defended that sort of a program then and I would defend it today.”

But the court has grown far more conservative since Thomas joined. Most experts don’t expect different outcomes from the two cases, but note that Jackson is likely to raise questions in the UNC case that might not surface in the Harvard hearing.

There’s one clear difference between the two. Harvard is a private university and therefore subject to Title VI of the Civil Rights Act, which applies to any institution receiving federal funds. But UNC is a public university and is guided by the Constitution, specifically the 14th Amendment’s guarantee of equal protection.

Kahlenberg said that by taking both cases, the court can issue rulings based on both laws. 

Impact on recruiting

Education advocates in North Carolina are already assessing the possible impact if the court ends affirmative action. Black and Hispanic students in the state may have fewer opportunities to attend the flagship university, according to researchers at the Hunt Institute, an education think tank.   

Just look at California, where voters banned affirmative action in 1996, wrote Madeline Smith and Erica Vevurka, directors of higher education and K-12, respectively, at the institute.

“The ban [on] affirmative action made it more difficult for the state’s public institutions of higher education to explicitly recruit students of color,” they wrote. “It also restricted the access that students of color had to information around financial aid options.”

After 1996, the enrollment of freshman from underrepresented minority groups dropped by at least 50%, according to that the University of California submitted to the Supreme Court in support of Harvard and UNC. 

Even though the state has implemented diversity efforts targeting low-income families and first-generation college students, the university system “struggles to enroll a student body that is sufficiently racially diverse to attain the educational benefits of diversity,” the brief says. 

Beyond college admissions, some experts say the case has implications for efforts to create a more diverse teacher workforce, especially in the wake of the pandemic.

A ruling for the plaintiffs could “derail the progress” made in grow-your-own programs and teacher residencies that target Black and Hispanic college students, said Jerell Hill, dean of the School of Human Development and Education at Pacific Oaks College in Pasadena. 

The college participates in an that targets universities serving large numbers of minority students. “It is difficult to measure a court decision that could delay social, economic and educational opportunities for decades,” he said.

Christopher Nellum, executive director of The Education Trust-West said if the court rules for the plaintiffs, there are still strategies to increase diversity in teaching. They include building strong teacher education programs at historically Black colleges and universities and expanding affordable housing for teachers.

“To have diverse professions like teaching, you’ve got to have a pipeline of folks who are coming out of undergrad who are also diverse,” he said. “We know diverse teachers are good for all students.”

Between 2016 and 2021, the average GPA for students taking the test increased from 3.22 to 3.39. But scores on the ACT I — reflecting performance in English, math, reading and science â€” declined slightly, from 20.8 to 20.3. The trend was especially noticeable among Black students and those from low- to moderate-income homes.

The results, based on a sample of over 4 million students in almost 4,800 schools, reflect “persistent, systemic,” grade inflation, wrote the authors, both researchers at ACT. Following a recent from the National Assessment of Educational Progress — or NAEP — the ACT analysis provides further evidence that grades, which often include points for effort and class participation, don’t reflect objective measures of academic achievement.

The study found more grade inflation in higher-poverty schools. Edgar Sanchez, a lead research scientist at ACT, said it’s unclear why that’s the case and called the study “a starting point.”

But Seth Gershenson, an American University researcher who has the issue, attributed the problem to what President George W. Bush “the soft bigotry of low expectations.” Schools, Gershenson said, award passing grades “and let someone else deal with the lack of learning later on.”

His research also showed growing grade inflation over time in wealthier schools, where “more entitled parents and students” are putting pressure on teachers to give A’s so students can get into top colleges.

It’s unclear to what extent the relaxation of grading standards during the pandemic affected the study’s outcome, wrote the ACT researchers. California students, for example, were allowed to change their lowest grades. And reduced how much scores on end-of-course tests counted in students’ final grades. The authors noted that students who tested in the middle of a pandemic, especially the spring after schools shut down, “could be different from typical tested students” and also from those who didn’t test until 2021.  

At a time when more colleges and universities are making both the ACT and SAT for admission, ACT CEO Janet Godwin acknowledged the risk that the paper’s argument in support of standardized testing might seem self-serving, 

But she said the company has “a responsibility” to contribute to the conversation.

“We have the means and the data to do this kind of research,” she said.

Michael Petrilli, president of the Thomas B. Fordham Institute, a conservative think tank that has published Gershenson’s work, agreed that ACT has “a big dog in that fight.” Regardless, he agreed that current trends in grading are leaving students less prepared for higher education.

“The heart of the problem is that there aren’t any standards or guidelines for grading in most places,” Petrilli said. “Teachers are on their own, and don’t get much, if any, guidance. Nor do they get much training in [education] schools.”

‘In the dark’

Parents rely on grades to give them an accurate portrait of their children’s performance — especially since they are given more frequently than annual state tests, said Bibb Hubbard, founder and president of Learning Heroes, a nonprofit that helps parents become better informed about their children’s progress. 

But many parents might not understand that grades are sometimes more about effort than knowledge, she said. 

“When we ask teachers why they don’t share more with parents about student achievement, they report it is fear-based — fear of not being believed, of being blamed and of their principals not having their back,” she said. “The system is designed to keep parents in the dark about their child’s grade-level performance.”

In recent years, some districts have adopted an approach known as “standards-based grading” that educators say offers a more accurate measure of whether students are meeting expectations. It takes the emphasis off non-academic factors like turning in assignments early and attendance — practices that can vary from teacher to teacher.

The 3,000-student Pewaukee School District in Wisconsin, outside Milwaukee, implemented such a model in 2015. Students are graded on a one-to-four system, with one representing below expectations and four indicating advanced performance. 

“We didn’t want students’ grades dependent on whether they brought in a box of Kleenex,” said Danielle Bosanec, the district’s chief academic officer. “We wanted kids to stop chasing grades and start chasing learning.”

Parents bought into the plan because it allows students more than one chance at a passing grade on an assignment or test so long as they can demonstrate the additional work they did after their first try. The district agreed to convert final scores into letter grades for transcripts.

Bosanec also conducted her own research to test the connection between the new grading model and ACT scores. In general, she found that in a standards-based model, “as students’ grades go up or down, the impact on ACT scores follows suit.”

Despite the studies pointing to grade inflation, there’s no “widespread evidence that institutions have lost trust in GPAs,” said David Hawkins, chief education and policy officer at the National Association for College Admission Counseling. What colleges crave, he said, is more context. 

In the future, he thinks, like research projects or class presentations — used widely in some states like New Hampshire in lieu of tests — could become part of the admissions process.

“There is more to be mined from the student’s high school record than we’re currently getting,” he said. “We’re missing a lot of data about what students can do.”