The Supreme Court Abolished Affirmative Action. Here’s What That Means for UW System Schools.

UW schools to feel the effects of US Supreme Court decision on affirmative action.

By Fiona Hatch
July 14, 2023

A 6-3 ruling overturned decades-long affirmative action practice in college admissions.

On June 29, the US Supreme Court released its historic decision effectively ending race-conscious admissions for universities and colleges across the nation. 

The 6-3 ruling from the conservative-controlled court overturned the Regents of the University of California v. Bakke decision that permitted institutions to consider race as one of many factors in admission.

The court’s three liberal justices dissented from the decision. 

“Our country has never been colorblind,” Justice Ketanji Brown Jackson said in her dissent. “Given the lengthy history of state-sponsored race-based preferences in America, to say that anyone is now victimized if a college considers whether that legacy of discrimination has unequally advantaged its applicants fails to acknowledge the well-documented “intergenerational transmission of inequality” that still plagues our citizenry.”

The History of Affirmative Action

In 1961, President John F. Kennedy issued an executive order establishing affirmative action for the first time by mandating that federal contractors must use affirmative action “to ensure that applicants are treated equally without regard to race, color, religion, sex, or national origin.”

This was expanded upon in President Lyndon B. Johnson’s 1965 executive order, which laid much of the groundwork for affirmative action today. 

The 1978 Bakke case specifically looked at the use of race-conscious college admissions. The Court’s decision ruled that while racial “quotas” in university admissions processes were unconstitutional, the use of affirmative action programs to increase minority acceptance rates was allowed under certain circumstances.

Up until last month, this meant that universities in most states could consider race as one of many factors — including grades, test scores and extracurricular activities — contributing to a student’s application. Because students of color face systemic barriers to educational success such as underfunded schools or income inequality, affirmative action allowed colleges to take such realities into account when determining student merit. 

After the court’s recent ruling, this practice is officially considered unconstitutional. This significantly restricts a university’s ability to consider how historic inequalities have impacted an applicant’s opportunities up until this point. 

Affirmative Action in the UW System

The UW System has used affirmative action in its hiring and admissions processes for decades to ensure equal opportunity and increase the UW population’s diversity. In light of the court’s ruling, the system is making changes to its processes.

“The ruling will require some modifications to aspects of our current admissions practices; we will, of course, adapt our practices to comply with the law,” UW-Madison Chancellor Jennifer Mnookin said in a statement on June 29. 

Mnookin also said that UW-Madison and UW System lawyers will be reviewing the Court’s opinions and waiting for “additional guidance from relevant federal agencies.” 

It is not yet clear how or to what extent UW’s enrollment will change as a result of the court’s decision, but based on other institutions’ experiences, it’s likely that rates of diversity will regress.  

“At peer institutions where race was previously removed from the admission process, there were declines in the number of BIPOC students admitted and enrolled at their institutions,” the UW-Madison Diversity page said in response to the court’s decision. 

In 2006, the University of Michigan was forced to stop using affirmative action in admissions. That year, 7% of undergraduate students at the university were Black. In 2021, only 4% of more than 32,000 undergraduate students at the university were Black, a decline that came despite an increase in Michigan’s college-age Black population during that time period.

Diversity in Wisconsin

Wisconsin institutions have made progress toward increasing student body diversity on campus over the last several years, but schools like UW-Madison are still overwhelmingly white.

UW System data shows that in 2022, total enrollment was over 160,000 students across all 13 universities. Of these, only 30,700 were students of color and they were primarily centralized at the UW’s Milwaukee and Madison campuses. 

These disparities are in part driven by the higher overall percentage of white people in Wisconsin’s population, but also by decades of broader systemic inequalities in education that have created a sizable gap between Black and white students’ educational outcomes.

The most recent federal data shows that Wisconsin has one of the largest gaps between white and Black high school graduation rates in the nation. In the 2019-2020 school year, 94% of Wisconsin’s white students graduated high school compared to 71% of their Black peers. 

Only 23.5% of Wisconsin’s Black population held a college degree according to an Education Trust study. This translates to a 22 percentage point gap between white and Black degree attainment, putting Wisconsin at a below-average degree attainment rate for its Black population. 

This is consistent with data Justice Jackson noted in her dissent. 

“In most state flagship higher educational institutions, the percentage of Black undergraduates is lower than the percentage of Black high school graduates in that State. Black Americans in their late twenties are about half as likely as their White counterparts to have college degrees,” Justice Jackson said.

Wisconsin is no exception to this statistic. 

“Though we have seen a roughly 50 percent increase in our underrepresented undergraduate student population in the past five years, our current enrollment percentages of underrepresented students still lag behind many of our peers,” Chancellor Mnookin said. 

Bottom Line

Affirmative action has ended in the US, and Wisconsin’s colleges will feel the effects. 

The court’s decision does not gut affirmative action everywhere. Under the Wisconsin Contract Compliance Law, every contractor working with the State of Wisconsin must use affirmative action policies and practices in its employment programs. 

However, it does leave Wisconsin’s universities without the ability to consider such persistent race-based disadvantages in their admissions process. 

“History speaks. In some form, it can be heard forever,” Justice Jackson said. “To demand that colleges ignore race in today’s admissions practices… is not only an affront to the dignity of those students for whom race matters. It also condemns our society to never escape the past that explains how and why race matters to the very concept of who “merits” admission.”


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