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Penn is planning for the potential overturn of affirmative action by the Supreme Court in an upcoming ruling. Credit: Mehak Dhaliwal

Penn is actively planning for the potential that the Supreme Court will overturn affirmative action in an upcoming ruling, but the exact response and impact remains uncertain.

Legal analysts widely expect the court to overturn affirmative action by the end of June, in its ruling for two cases filed by Students for Fair Admissions against Harvard University and the University of North Carolina. Administrators, professors, and students that The Daily Pennsylvanian spoke with said that the end of affirmative action would force higher education institutions nationwide to recalibrate their admissions processes in order to build diverse classes of incoming students. 

Why affirmative action could be overturned

In modern higher education, affirmative action refers to the practice of considering a student’s background, such as their race, as a factor in deciding whether they should be admitted to a university. 

At Penn, the Policy on Equal Opportunity and Affirmative Action prohibits discrimination based on a series of legally protected classes, including race and ethnicity, among other factors. Penn admissions are based on a holistic approach, meaning it takes into account various factors — including race — when evaluating applicants.

Penn President Liz Magill wrote in a statement to the DP that diversity is important for preparing Penn students and crucial to the University's mission.

“We have long been committed to providing the transformative opportunity of a Penn education to the broadest range of talented individuals, and a student body that reflects the diversity of our broader society creates a rich and dynamic educational experience,” Magill wrote. “It is also essential to preparing Penn graduates to lead in our pluralistic world.”

The two cases being heard by the court were petitioned by SFFA, an organization that aims to advance a “colorblind” college application process that, historically, has been seen in conflict with the 14th Amendment, which guarantees equal protection under the law. 

The current legal precedent has upheld the rights of schools to consider race as a contributing factor to admissions in higher education. University of Pennsylvania Carey Law professor Kermit Roosevelt said that the current case is “absurd" given this precedent.

“I think it would complete what's been a project for a while, which is turning the Equal Protection Clause from a constitutional provision that prevents the government from inflicting inequality to one that prevents the government from promoting equality,” Roosevelt said. 

In response to an interview request, Penn Carey law students and co-advocacy chairs of the Black Law Students Association Ty Parks and Devontae Torriente directed the DP to an opinion piece in The Philadelphia Inquirer where they wrote that overturning affirmative action could undermine previous rulings that helped "level the playing fields" for Black students and “fundamentally reshape the landscape of higher education." 

How Penn may be impacted by the Supreme Court's ruling

Penn Carey Law professor Cara McClellan, the director of the school's Advocacy for Racial and Civil Justice Clinic, said that overturning 40 years of precedent is a “concerning” and “unusual” thing for the Supreme Court to do. She said that not considering race in admissions is shown to be "really devastating" to the number of students of color. 

A 2020 study evaluating the long-run effects of 19 public universities that banned affirmative action in the 1990s found that it led to “persistent declines” in the number of underrepresented minorities admitted and enrolled. Similarly, a 2012 study cited by the Civil Rights Project came to the conclusion that past affirmative action bans decreased Black student enrollment by as much as 25% and Hispanic student enrollment by nearly 20%.

“Affirmative action is not a panacea for remedying systemic racism," Parks and Torriente wrote in their opinion piece. “...Despite all the nation’s efforts, Black students remain at a significant disadvantage when it comes to college admissions.”

Wharton senior and Natives at Penn member Lauren McDonald also expressed concern that if affirmative action is overturned, there will not be a clear spot to indicate Native identity on the college application and have it be recognized.

"It just feels like our background and history don't matter,” she said.  

McClellan said that — while not perfect — the admissions process at Penn has made a lot of progress, but that all that could be affected by the ruling. 

“The reality is that even the progress that has been made is really under attack and at risk given the Supreme Court's willingness to consider this decision," McClellan said. 

How Penn may respond if affirmative action is overturned

If the Supreme Court decides to overturn affirmative action, Penn would be impelled to reframe its admissions process in a way that still ensures a diverse student body. 

For example, McClellan pointed to legacy admissions as an example of a policy that can disproportionately create a barrier for underrepresented students, since legacy students have had access to higher education for generations. Parks and Torriente echoed this sentiment in their op-ed.

Another option suggested by McClellan is a “top 10%” plan — as seen in Texas and California — where the highest performing students are guaranteed admissions to state-funded universities. This would allow students from different zip codes admittance and help mitigate the barrier of access to a high-quality education, she said.

On the other hand, Roosevelt said that Penn and other schools could move towards using diversity statements, which he said would allow them to maintain their practices "without explicitly using race as a factor.”

Vice Provost and Dean of Admissions Whitney Soule wrote in a statement to the DP that Penn Admissions is working with the University in "ongoing planning discussions" with administrators, staff, and faculty — but the office's concrete plans and next steps will depend on what the actual ruling is.

"We will of course follow the law, and we will continue to do all we can to create classes of Penn students who will have the best educational experience here at Penn, and be ready to lead in our complex, diverse, and global world," Magill wrote. “The future success of this community and our country depends on that."