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Colleges anxiously await landmark Supreme Court ruling on affirmative action

Late June is usually a quiet time on college campuses. Not this year.

In Zoom calls, workgroups and text threads, elite school officials are anxiously preparing. In a few days, the Supreme Court could bar them from considering race as a factor in the admissions process.

“The truth is, many colleges and universities have been preparing for this day for a long time,” Danielle Holley, the incoming president of Mount Holyoke College in western Massachusetts, said in an interview.

Holley, who was dean of Howard University Law School for the past nine years, is well-versed in the legal arguments for and against using race in college admissions. The daughter of two academics, she has studied jurisprudence since she was a young law student. Now, he has focused on the practical implications of what judges can do.

“The career is a fundamental part of how we do our work in higher education,” Holley said. “We don’t want them to take away our tools or tie our hands behind our backs. … I am extremely concerned.”

The next scheduled day for the Supreme Court to rule is Tuesday, and more rulings are expected by the end of the week. Justices are considering a pair of affirmative action cases stemming from challenges to admissions processes at Harvard University and the University of North Carolina.

The two lawsuits, which allege the schools discriminate against Asian students (a charge they deny), were filed by a group called Students for Fair Admissions, which is led by conservative activist Ed Blum.

The affirmative action cases are among 10 the court has yet to decide as it faces the final week of June, when its nine-month term traditionally concludes with a series of high-profile rulings . In addition to the affirmative action cases, the court will also rule soon on the Biden administration’s bid to revive its $400 billion. federal student loan debt relief program.

Affirmative action, originally introduced to remedy historical discrimination, has been a controversial issue for decades. Strongly supported by educational institutions and corporate America as vital to fostering diversity, conservatives have condemned it as antithetical to the idea that racial equality means that all races are treated equally.

A year after the court struck down women’s constitutional right to abortion, the sense of unease is palpable among administrators and officials at more than two dozen select colleges and universities who spoke to NBC News. “Devastating” is how an administrator at a liberal arts college described admissions without the ability to consider a student’s race.

Although a decision ending affirmative action would affect only a relatively small number of colleges, administrators like Holley believe the impact could be significant. “We know that the most competitive colleges and universities in the country tend to produce many of the leaders that we see,” he said.

For decades, the Supreme Court has wrestled with the issue of race in college admissions, but high-profile cases since 1978 have largely hit the same spot. Admissions officers may consider a student’s race, but only as a factor in an individualized, holistic, non-formulated manner.

Schools can’t use quotas or reservations, the court ruled, but once students check boxes indicating their race or ethnicity, that part of their identity can be taken into account. So far, the rationale offered by the court has been that certain “educational advantages” come from a diverse student body, but most justices have also ruled that lower courts must scrutinize whether schools have tried “neutral” alternatives for the race.”

For almost as long as affirmative action has existed, it has had its conservative detractors in court. The most vocal has been Justice Clarence Thomas, whose former clerks are now arguing the cases against the schools that the court is about to decide.

Thomas, only the second black man to serve on the court, has spoken out in length about his conflicted feelings about his experience at Yale Law School, based on his perception that he was admitted in part because of his race.

In recent years, the court has moved further to the right, thanks to three appointments made by then-President Donald Trump, meaning that Thomas’ opinion may finally prevail and the justices could conclude that affirmative action violates both federal law and the Constitution.

In October, former Thomas officials-turned-litigators spent hours in oral arguments trying to convince the justices that the schools haven’t tried too hard if diversity is their real goal. They offered several alternative ways that universities could produce non-homogeneous classes while still using “culture, tradition, heritage.” But race, conservative lawyers argued, should be off limits.

The problem, schools say, is that alternatives to race simply don’t produce the same results. Femi Ogundele, the dean of undergraduate admissions at the University of California, Berkeley, says she’s seen it firsthand. California is one of nine states that banned the use of affirmative action at public universities. In the immediate aftermath, the state’s selective schools saw a 50 percent drop in black and Latino students admitted. These numbers have never recovered.

Facing a future without affirmative action, some elite schools are devising alternative options to foster diversity, such as reducing reliance on standardized tests or not considering them altogether. A bolder step would be to get rid of legacy admissions that favor the children of previous graduates, and some schools, such as Amherst College in Massachusetts, have already announced plans to do so. Other colleges plan to rely more on partnerships with certain high schools and pipeline programs with a track record of success.

But neither school has a firm game plan yet, at least not one that’s willing to commit to it.

“We’re going to find out very quickly which institutions really care about diversity and equity,” Ogundele said. “I think it’s the beginning of the conversation and not the end to talk about equity and access to higher education.”

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