It is making what could be the last stand for affirmative action in public university admissions.
The gatekeepers of UNC-Chapel Hill consider race and ethnicity, among many factors, when they sift tens of thousands of applications a year to decide who will get in. Now a plaintiff is urging the high court to declare the race-conscious method unconstitutional. Analysts believe the conservative majority of justices will be sympathetic to the critique during oral arguments later this month.
UNC-Chapel Hill, represented by the state attorney general, is urging the court to uphold decades of precedent that allow the limited use of race to promote campus diversity.
“We are standing behind our holistic admissions process,” Kevin M. Guskiewicz, the university’s chancellor, said in a recent interview. “This case is really about us defending the values of this institution and that of hundreds of other universities across the country.”
Harvard University, the defendant in a companion case that has overshadowed the suit against UNC-Chapel Hill, is pressing the same argument to the high court on behalf of private colleges and universities. The newest Supreme Court justice, Ketanji Brown Jackson, who until recently served on a Harvard governing board, will recuse herself from that appeal but participate in the one involving UNC-Chapel Hill.
Students for Fair Admissions, the plaintiff in both cases, alleges in court filings that Harvard and UNC-Chapel Hill “award mammoth racial preferences” to African American and Hispanic applicants, to the detriment of White and Asian American applicants, and ignore “race-neutral” alternatives that might preserve student diversity. These practices, the plaintiff alleges, amount to “basic and blatant” violations of civil rights law. Both universities deny the allegations, and both won victories in federal trial courts.
While many selective schools consider race in what they call “holistic” admissions, many others don’t. Several states prohibit the practice at public universities.
This public flagship university excluded Black students for more than a century and a half after it was founded in 1789 — and it still struggles to build a student body that reflects North Carolina. Today the Black share of undergraduates here, about 9 percent, falls well short of the Black share of the state population, about 22 percent. About 56 percent of undergraduates at Chapel Hill are White, according to federal data, 13 percent of Asian descent, 10 percent Hispanic or Latino, 5 percent multiracial and 5 percent international. Most of the rest are of unknown background.
Julia S. Clark, a senior majoring in political science and African, African American and diaspora studies, said race should not be ignored in admissions when it affects so many other aspects of educational opportunity. The 21-year-old from Falls Church, Va., identifies as Afro-Latina and is president of the Black Student Movement at UNC-Chapel Hill.
“We need to have race be a factor in our admissions system because race is a factor in people’s everyday lives,” Clark said one late September afternoon in the student union. “Race is a factor in my life all the time. There is never a time when race is not a factor for me.”
Jacob James, a junior majoring in public policy and history, wants the court to outlaw racial preferences in admissions. The 20-year-old from Robersonville, N.C., is White and chairs the campus College Republicans organization. He said the university should pay more attention to ideological diversity.
Affirmative action based on race is “antiquated,” James said, and “particularly egregious” at public universities. “Effectively what it’s saying is, ‘You’re not good enough to get in on your own merit, so we have to help you,’ ” he said.
Getting into UNC-Chapel Hill is hard. More than 53,000 applied to enter as freshmen in fall 2021, with only 19 percent admitted. The home of the famed Tar Heels athletic teams is one of the most competitive public universities in the country, especially for those applying from out of state.
There is a divide in public higher education between universities that consider race and those that don’t. While various Supreme Court rulings since 1978 have allowed race-conscious admissions — within certain conditions — nine states prohibit it.
California banned affirmative action in public universities through a voter-approved initiative in 1996, and voters resoundingly defeated a proposal to repeal the ban in 2020. The others that ban consideration of race in admissions: Arizona, Florida, Idaho, Michigan, Nebraska, New Hampshire, Oklahoma and Washington state.
Leaders of the University of California and the University of Michigan, siding with the defendants, assert in amicus court filings that “race-neutral” recruiting techniques — targeting students through socioeconomic, geographic and other criteria — have not produced sufficient racial diversity at their most selective campuses. They cited particularly worrisome declines in Black and Native American enrollment.
“To identify promising candidates effectively, admissions officers must be able to consider the fullness of each applicant’s background and experience, including socioeconomic profile, challenges overcome, cultural background — and also the applicant’s race,” the University of Michigan’s brief said.
But Oklahoma’s attorney general, John O’Connor (R), argued in an amicus brief that racial diversity did not suffer at the University of Oklahoma after the state banned affirmative action in 2012. Universities, he wrote, “can remain both diverse and academically competitive without resorting to racial discrimination.”
State bans don’t tell the whole story. A Washington Post review of how 66 major public universities describe admissions criteria for a higher education initiative called the Common Data Set found that nearly 60 percent ignore race. Among them are the universities of Hawaii, Kentucky, Maine, Missouri and Nevada at Las Vegas.
Race is considered at schools such as the universities of Maryland, Virginia and Wisconsin at Madison, as well as Ohio State University, Pennsylvania State University and Rutgers University in New Jersey.
In some states, there is a split. Georgia Tech, the University of South Carolina and the University of Texas at Austin consider race, according to Common Data Set responses. But Clemson University in South Carolina, the University of Georgia and Texas A&M University do not.
The last time the Supreme Court ruled on the issue, in 2016, it narrowly upheld race-conscious admissions at UT-Austin.
Gregory L. Fenves led the Texas flagship at the time. He recalled a moment of surprise jubilation when he learned the news in a Singapore airport. “I can’t believe it!” he shouted to his wife. “We won!”
After President Donald Trump appointed three new justices, the new conservative majority was willing to revisit that decision.
Fenves, now president of private Emory University in Georgia, said the court’s action will have a profound effect on selective schools. “An attack on affirmative action is really an attack on the importance of diversity in education,” he said. “There’s a lot at stake. What do we want our class to be? What do we want our whole class to look like?”
The suits against UNC-Chapel Hill and Harvard, filed in November 2014, proceeded slowly through federal courts. Both universities provided records on more than 100,000 applications to the plaintiff for analysis.
The challenge to Harvard centered on a claim that it illegally discriminated against Asian American applicants. A federal judge in Massachusetts rejected the claim after a widely publicized trial in 2018 that exposed the sometimes-embarrassing inner workings of the Ivy League university, including an admission rate for so-called legacy students, with parents who went to Harvard College. (It was 34 percent, more than five times the regular rate.) The 2019 ruling in Harvard’s favor was later upheld by a two-judge panel of the U.S. Court of Appeals for the 1st Circuit.
The challenge to UNC-Chapel Hill focused on allegations that the university had violated the equal protection clause of the 14th Amendment and civil rights law by discriminating against White and Asian American applicants, putting too much weight on race in its deliberations and failing to give adequate consideration to “race-neutral” alternatives. The trial, held in 2020 in North Carolina, drew relatively modest public attention.
In 2021, U.S. District Judge Loretta C. Biggs ruled that UNC-Chapel Hill had not violated civil rights laws and that its admission practices were constitutional. Biggs accepted the view of an expert witness for the university that UNC-Chapel Hill’s process was not formulaic and that race and ethnicity were not “dominant factors” in decision-making. She also ruled that the university had made a “good faith” effort to use race-neutral approaches, citing an extensive financial aid program and other measures to recruit rural, low-income and first-generation college students.
Biggs also cited the work of historian David Cecelski, who wrote in a report submitted for the court record that UNC-Chapel Hill was “a strong and active promoter of white supremacy and racist exclusion for most of its history,” with ties to enslavers, the Ku Klux Klan and “ardent defenders” of Jim Crow. That history, Biggs wrote, provided “an important contribution to the Court’s understanding of the context of this case.”
Race remains a frequent point of tension in Chapel Hill.
In 2018, protesters toppled a Confederate statue on campus known as “Silent Sam.” Critics saw the statue as a symbol of white supremacy at the gateway to the historic campus; supporters defended it as a memorial to alumni who died for their state. There was further turmoil over the removal of the pedestal and plaques.
More upheaval arose in 2021 when the university botched an effort to recruit the prominent Black journalist Nikole Hannah-Jones, a UNC-Chapel Hill graduate, to a prestigious faculty position without initially offering her the job protections of tenure. Previously those who held the chair had been granted tenure. The university eventually made her a tenure offer, but Hannah-Jones turned it down and went to Howard University. The episode angered many Black faculty members and students.
Inside the dramas at UNC-Chapel Hill: Boards, partisan politics and the flagship
Claude A. Clegg III, the chair of the African, African American and diaspora studies department at UNC-Chapel Hill, who was an undergraduate here in the 1980s, said the university must keep in mind that people of color often feel a sense of isolation on campus. “I’ve felt it as a student, and I’ve seen it as a professor,” he said. Clegg, who is African American, said he views affirmative action as a modest but necessary measure. “It’s kind of a watered-down version of reparations, to open the door and allow a different population of folks who have been historically excluded to come here,” he said.
Now comes the Supreme Court.
In January, justices agreed to review the UNC-Chapel Hill case at the same time as the Harvard case. The ruling from Biggs on the public university’s admissions was not reviewed by a circuit court.
Students for Fair Admissions, led by a White opponent of affirmative action named Edward Blum, is a group based in Arlington, Va. Its members include some people denied admission to Harvard and UNC-Chapel Hill. None of those members testified in either trial.
Blum recently put The Post in touch with two people of Asian descent whom he said were members of the organization. One, who showed The Post a copy of a rejection letter he received from Harvard in 2017, said his parents were immigrants from India. “There are actual students behind Edward Blum who agree with his view on this,” the man said. The man, who said he also answered questions in a pretrial deposition for the Harvard case, spoke with The Post on condition of anonymity because he wanted to avoid negative publicity.
Calvin Yang, 20, now a sophomore at UC-Berkeley, is another member of Students for Fair Admissions. Yang said he was born in Canada to Chinese parents, graduated from high school in New York and holds permanent residency status in the United States. He said Harvard denied him admission in 2021. Stereotypes about Asians hurt their chances, he said. “I’ve always believed affirmative action is extremely unfair,” Yang said. “I want to stand up on behalf of this somewhat marginalized group and speak for Asians.”
Blum said he was unable to connect The Post with members of his group who were denied by UNC-Chapel Hill.
On the other side, Andrew Brennen is eager to speak out.
Now 26, Brennen graduated from the university in 2019. He was one of several students who submitted written testimonials for the court record about the value of racial diversity on campus. Brennen, who is African American, told the court he sometimes felt far outnumbered.
Brennen recalled that a classmate made a statement one day implying that affirmative action makes it hard to know whether African American students at the university “deserve” to be there. “No fewer than six sets of eyes in the classroom turned to me to respond,” Brennen wrote in 2017. “I was speechless in the moment and felt like I failed to come to the proper defense of my fellow students of color.”
Reached by The Post recently, Brennen reiterated that admissions officers should be able to take race into account. Race played a major part in his experience here. He recalled witnessing white supremacist demonstrators on campus, hearing a racial epithet directed at him one day downtown on Franklin Street, seeing the pulsating crowds on the night Silent Sam came down. He also showed The Post a copy of an admission essay he wrote about his experience as a Black high school student in Lexington, Ky.
Brennen said it was “not reality” to try to separate his racial identity from his qualifications for admission.
“My Blackness shapes every single interaction and element of my life,” he said. “Look, I think there’s a lot of things that are unfair about the college admissions process, but what I’m sure of is that having a more diverse learning environment benefits everyone.”