End of college affirmative action requires concerted action by all of us to strengthen PreK-12 education

John Trasvina
3 min readJun 30, 2023

In the wake of the twin U.S. Supreme Court decisions that current affirmative action admissions programs are unconstitutional, we all must redouble our efforts to increase educational attainment particularly of young Latino and African American students. While the Court leaves open the door to a more comprehensive examination of how an applicant’s racial background affects his or her life, improving academic preparation is the surest way to promote diversity and establish a fair admissions system for all applicants.

The Supreme Court is powerful and could have entirely eliminated the consideration of racial or ethnic background, not only in higher education but in employment as well. Perhaps because the decision was written by Chief Justice Roberts instead of Justices Thomas or Alito, it goes beyond what colleges and universities can’t do to include the types of diversity-focused admissions systems that are still permitted. And that is where the focus of educators, policymakers, advocates, parents and students must be. What is next for college and university admissions?

Chief Justice Roberts criticized the Harvard plan for how it treated applicants belonging to one race as a negative and wrongly stereotyped students as thinking a single way because of their race. My familiarity with Harvard admissions as a student and alumnus and my involvement with advocacy on the issue in and out of government is, unfortunately, consistent with that view.

Rethinking affirmative action can address these concerns in the following ways. First, recognition of the diverse histories of Asian Americans. The district court in the Harvard case found that the stereotyped descriptions of Asian American applicants as less likeable or courageous came from the students’ own teachers and recommenders from around the country. Increasingly considering the individual instead of group characteristics of applicants will inevitably give greater weight to teacher and counselor evaluations. If they are to have such a large say in their students’ future education, they must understand these individuals. Second, elimination of special admissions for children of alumni would increase the flexibility of college admissions decisionmakers. If they are not eliminated, then schools should at least put the burden on the applicant or his/her parent to justify why they need the legacy advantage after coming from a family that already has the educational, societal and economic benefits of being an Ivy League graduate. Third, creation of admissions pipelines for students who have skills, experience or attributes that will make them particularly able to tackle societal problems. For example, if the institution is particularly committed to closing health gaps affecting minority communities, students of any background who are bilingual, have science education or health volunteer experience and express a commitment to serve in particular ways could gain an admissions advantage. Law schools and education schools could do the same for students who have earlier training and a future commitment to close the justice and education gaps. These programs would address both the ‘fair consideration” and “measurable outcomes” flaws in current programs identified by Chief Justice Roberts.

What must not be forgotten in the debate over higher education affirmative action are the persistent gaps in educational opportunities and outcomes experienced so heavily in Black and Latino communities. Just like in a track meet, removing a hurdle for a runner is not the same thing as jumping over it. We continue to have unequal preparation of students as measured by test scores and grades. These measurements matter and predict future educational and career success. That test scores and grades may reflect unequal preparation is no more of a reason to disregard them than not taking your temperature to avoid knowing that you have a fever.

The words “affirmative action” were first expressed in the context of addressing racial disparities by President Johnson in 1964. In almost six decades of educational and other efforts, we have not succeeded in eliminating the disparities. Addressing educational disparities at their root will produce a greater and longer lasting impact on diversity and fair access to higher education than the affirmative action approach outlawed today.

Students applying to colleges and universities this fall can still demonstrate with particularity and meaning what differences they offer to their future campus. Teachers better understanding their students and communities will improve the classroom environment and fair opportunities for their graduates. Looking at the total individual better respects their individuality, contributions and challenges. Changing the way colleges and universities admit students places a greater responsibility on all of us.

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John Trasvina

Civil rights advocate, educator & public servant. Former General Counsel, US Senate Judiciary Subcommittee on the Constitution & Dean of USF Law School