Last summer, the Supreme Court ruled that colleges and universities can use race as one factor among many in making admissions decisions. The court determined that such policies helped further an institution’s mission to attain the educational benefits of diversity.

A recent report by The New York Times, however, has brought affirmative action back to the forefront. According to The New York Times, the Trump administration may be considering a “project” to direct Department of Justice resources to investigate race-conscious admissions. While Department of Justice officials responded that the internal memo did not reflect new department policy, the story has placed colleges and universities “on notice” that their efforts may face renewed scrutiny.

As an education and legal scholar of equity in higher education, I’ve represented hundreds of social scientists before the Supreme Court to support colleges’ use of race-conscious admissions. My belief – and that of many educators and civil rights advocates – is that the alleged investigation by the Department of Justice is meant to intimidate institutions and, perhaps, sway admissions officers from considering race in their admissions policies.

Unintentional or not, the potential threat of legal action could have a dramatic impact on the diversity of college campuses across the country.

Legal intimidation

Despite the Supreme Court’s ruling last year, conservative groups like Students for Fair Admissions continue to press lawsuits against universities that employ race-conscious admissions. Cases against Harvard University and UNC Chapel Hill are making their way through the courts and could potentially bring affirmative action to the Supreme Court again.

However, Harvard and Chapel Hill have some of the largest endowments in the country, with US$34 billion and $2 billion, respectively. Might institutions that lack the financial resources to defend against lawsuits begin changing admissions policies and practices in order to avoid potential legal threats?

A recent study found that over the last 20 years, a public commitment to race-conscious admissions has become far less common, particularly among institutions that are relatively lower in the status hierarchy. In 1994, 82 percent of “very competitive” public universities openly considered race as one of many factors in admissions decisions. By 2014, that number declined to just 32 percent. The “most competitive” universities, however, have continued their public commitment to race-conscious admissions practices unabated.

While the reasons for this trend haven’t been studied directly, it’s worth noting that the “most competitive” institutions are also the institutions that have more financial resources to defend against potential legal action.

Why opposition exists

In many ways, higher education provides a pathway to positions of power and influence in the United States.

Attending an elite institution remains an important part of the trajectory for those in the ruling class. Harvard, Stanford and Yale, for example, have graduated considerably more recent members of Congress than other less prestigious schools.

Elite institutions also provide particularly high labor market returns for students of color. Economists have shown, for example, that attending the most selective institutions made an especially big difference in the life earnings for black, Latino and first-generation students.

Keeping the path to high-status positions open for people of color was one of the reasons the Supreme Court found race-conscious admissions to be constitutional. In the words of the court, to cultivate a set of leaders with legitimacy in the eyes of the citizenry, “the path to leadership must be visibly open to talented and qualified individuals of every race and ethnicity.”

A recent opinion piece by Emory professor Carol Anderson made the compelling case for why opposition to affirmative action is grounded on the politics of white resentment – that is, a false view that opening the path to the ruling class for black and Latino students represents a “theft” of those resources from white students.

A world without affirmative action

What happens when colleges and universities cannot consider race as a factor in admissions?

Research shows that, without race-conscious admissions, the racial diversity of student bodies drops substantially. For example, African-American and Latino enrollment declined at the most selective undergraduate institutions in states with bans on affirmative action. Similar findings were reported in enrollment at law schools and business schools after these bans were instituted.

My own research documents declines due to affirmative action bans across a number of graduate fields of study, including engineering and natural and social sciences as well as medical schools.

The decline in racial diversity across these educational sectors exacerbates the already disproportionately low number of students of color in these programs and reduces the variety of perspectives that are needed to foster innovation and advance scientific inquiry.

In short, race-conscious admissions do make a difference in campus diversity, allowing universities to address, rather than exacerbate, existing racial inequities.

Next steps for universities

Though the Fisher case cleared a path for race-conscious admissions, universities must still do their part. The court ruled that institutions must be able to connect racial and ethnic diversity to their mission and demonstrate why so-called “race-neutral” efforts are not as effective as race-conscious ones.

However, these steps alone are not enough for preserving true diversity in the face of ongoing attacks.

One of the very important aspects of the Fisher decision is that the Court’s rationale reflects a robust understanding of diversity: namely, that diversity is about more than the number of students of color; it’s also about fostering an environment in which students can benefit from diversity.

Research suggests that this means ensuring that students are engaging across racial and ethnic lines. In an analysis of decades of social science research, my co-author and I learned that realizing the benefits of diversity requires healthy, even if uncomfortable, cross-racial interactions.

Doing so requires attending to the ways that race, in explicit and subconscious ways, influences our interactions and shapes educational opportunity. It’s hard to see how institutions can do so without considering race in their educational policies and practices – including college admissions.

Liliana M Garces has received funding from the Spencer Foundation, the William T. Grant Foundation, and the W.E. Upjohn Institute for her research. Opinions are her own and do not represent those of the foundations or the University of Texas at Austin.