This week marks the one-year anniversary of the Supreme Court’s landmark ruling in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and UNC, the twin rulings striking down race-based admissions preferences in higher education as incompatible with the 14th Amendment and the Civil Rights Act.
But, from the start, it was clear that things wouldn’t be that simple. Chief Justice Roberts’s decision left more than a little wiggle room. Roberts explained that “nothing in this opinion should be construed as prohibiting an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise”—a clause that’s prompted much speculation among legal experts, columnists, and admissions coaches about an “essay loophole.” (Roberts also held that the ruling didn’t apply to the nation’s military academies.)
Influential voices in higher ed quickly made clear that they didn’t regard the Court’s admissions decision as binding. Influential voices in higher education quickly made clear that they didn’t regard the Court’s decision as binding. Last summer, within days of the decision, Stanford law professor Richard Thompson Ford argued in the Chronicle of Higher Education that colleges “need not volunteer to help promote the covert segregationist agenda of a reactionary faction of the court.” College presidents bemoaned the ruling, while the American Educational Research Association insisted that “the Court did not expressly overrule prior rulings that allow race as a factor in admission.” Damon Hewitt of the Lawyers’ Committee for Civil Rights Under Law declared: “No matter what this court says, nothing can deprive us of what we call a race conscious future.”
In short, it’d be a mistake to trust colleges to honor the plain meaning of the Court’s ruling. After all, even prior to last year’s ruling, the Supreme Court had never okayed what Harvard and UNC were doing. Colleges had taken the Court’s vague allowance in Regents of the University of California v. Bakke that race could be a “plus factor” (and in Grutter v. Bollinger that consideration of race could be a tool for increasing “diversity”) as a green light to engage in the kind of wholesale discrimination that the Court had explicitly rejected. It’s safe to assume that we’ll see admissions offices pushing the envelope—confident there will be no oversight, pushback, or consequences in the insular world of elite higher education.
It’s also clear they’ll be egged on by some prominent Democratic officials. Indeed, the Biden administration made clear that it didn’t regard the Court’s ruling as the final word. Last summer, in the wake of the ruling, Assistant Attorney General for Civil Rights Kristen Clarke told a summit of national college leaders at the U.S. Department of Education that they should heed Justice Ketanji Brown Jackson’s dissent (rather than the majority decision) and “do what evidence and experts tell us is required.” Clarke cited the Roberts “loophole,” telling the assembled leaders that colleges “remain free to consider any characteristic of a student that bears on the institution’s admissions decision,” including “his or her lived experience with race.”
In particular, colleges have eagerly seized on Roberts’s “essay carve-out” to revamp their admissions-essay prompts. This spring, University of Chicago law professor Sonja Starr reported in the Indiana Law Journal that, of the U.S. News and World Report’s top 65 colleges and universities, 43 had essay prompts addressing diversity, identity, or adversity in the latest application cycle, 31 of which mandated responses from students. Ivy Coach, an elite college-admissions counseling firm, advised that “the outlawing of affirmative action had minimal influence on the class of 2028’s admissions process,” since most “elite universities exploited” the Roberts “loophole.”
Colleges have eagerly seized on Roberts’s “essay carve-out” to revamp their admissions-essay prompts. Jill Orcutt, global lead for consulting at the American Association of Collegiate Registrars and Admissions Officers, urged colleges to identify “those with lived experience or characteristics that match what your institution is looking for.” She pointed out that colleges can try to get at proxies for race by asking about “cultural background,” “lived experiences,” or views on “diversity and inclusion.” Columbia Law School opted for a less subtle approach when it required (in a short-lived move) that applicants submit a 90-second video “addressing a question chosen at random”—a stratagem baldly calculated to let admissions staff determine the applicant’s race.
So much for Roberts’s admonition that “universities may not simply establish through application essays or other means the regime we hold unlawful today.”
Of course, it’s not wholly clear how much racial preferences actually mattered for colleges’ recently assembled classes. June data from the Common App suggest that the racial compositions of applicant pools were largely unchanged, but we still await numbers revealing how universities responded to those pools. The ambiguity is due partly to a lack of transparency by colleges and partly to the U.S. Department of Education’s incompetence. In fact, “based on advice from counsel,” Harvard is refusing to release the demographics of this year’s class until the entire admissions process is complete. (In 2023, it released these data in March.) Moreover, the mess that the Biden administration has made of FAFSA simplification may have big effects on enrollment this year, especially for low-income students—which means it’ll be difficult to determine what’s responsible for any changes in racial composition.
While many colleges are engaging in cynical gamesmanship, some are responding in ways that appear defensible and healthy. Dartmouth and Vanderbilt have dramatically raised the race-neutral income levels for free tuition, while making clear they think this will particularly benefit minority students. Some states, following the lead of Georgia, Michigan, and Arizona, have considered creating scholarships for low-income students at public institutions. Amusingly, a number of elite colleges that abandoned the SAT and ACT in the name of diversity are now reversing course, recognizing that testing helps level the playing field for students who lack connections, social capital, and padded transcripts. Such actions are an appropriate way to promote opportunity for all, without regard to race or ethnicity.
Deterring colleges from backsliding on race-based admissions is no simple feat. Unfortunately, campus ideologues deem these legal, colorblind avenues to be insufficient. If we take them at their word, they will test the Court’s resolve and see whether it will allow institutions to reestablish de facto race-based preferences, much as they turned Bakke’s “plus factor” and Grutter’s diversity doctrine into a license for out-and-out race-based discrimination. Deterring colleges from backsliding is no simple feat (recall that it took many years of legal gumshoeing to make the case that Harvard and UNC were using de facto racial quotas in direct defiance of the Court’s prior rulings). What will it take, especially when so many campus officials believe in race-based admissions, are reliant on admissions staff who do, or are bullied by true believers in a groupthink ecosystem? It will require both legislation and litigation.
Here’s what we have in mind.
Legislation. State and federal lawmakers can prohibit colleges from discriminating on the basis of race or ethnicity—even in clever workaround ways like those discussed above—by making compliance with the SFFA ruling a condition of receiving public funds (including aid, grants, and loans). After all, public aid for higher education is conditional on all manner of things, including compliance with civil-rights law. Legislators should clarify precisely what’s impermissible and detail the penalties for violating the law. They should make clear that essays and interviews must not serve as proxy measures for race or ethnicity and lay out mechanisms for auditing college and university practices. And there need to be real consequences for institutions and individuals who disregard the law, whether that means cutting off aid to noncompliant institutions or attaching civil penalties to individual campus officials who’ve engaged in misconduct. The loudest, most active voices on campus tend to be those that embrace the logic of race-based preferences. In a vacuum, it’s easiest to humor the activist constituencies. If there are real consequences for violating the law, though, that calculus will change.
Because we can’t trust colleges to voluntarily comply with SFFA, there’s a need for transparency when it comes to the admissions process. To this end, lawmakers should require that colleges transparently report data on applications, admissions, and their selection criteria and allow third parties to audit their processes. One way colleges could comply is by setting minimum SAT/ACT scores and then randomly admitting from the pool of qualifiers. This would have the added benefit of shrinking the necessary size of admissions offices, dismantling game-playing bureaucracies and saving funds in the process.
The Supreme Court must not treat SFFA as a one-and-done kind of ruling.
Litigation. The Court must not treat SFFA as a one-and-done kind of ruling. This year, the Court decided against taking up a related case brought against the Thomas Jefferson High School in Virginia, a case in which plaintiffs alleged the same kind of anti-Asian discrimination evident at Harvard prior to the SFFA ruling. The refusal to hear that case brought to mind T. S. Eliot’s admonition that “there is no such thing as a lost cause because there is no such thing as a gained cause.” In short, SFFA will be significant only if the ruling is consistently applied. The Court needs to take cases that address race-based scholarships, the Roberts loophole, and attempted end-runs in order to make clear the permissible boundaries of institutional conduct.
Of course, the courts can take up only those cases that are brought by plaintiffs. Edward Blum, the crusader against affirmative action who successfully litigated the SFFA case in front of the Supreme Court, has made clear that he’ll continue pushing courts to curtail race-based affirmative-action regimes of all stripes. Good. Blum’s long-running campaign against this illegal and unjust regime achieved something extraordinary, but it’s clear that colleges won’t take it seriously until they’ve been sufficiently cowed by lawsuits to do so.
A year ago, the Supreme Court struck a powerful blow for merit, fairness, and the equal protection of the laws. But it’s fair to say that many in higher education are uncomfortable with those old-fashioned constructs and would dearly love to get back to the business of covertly employing racial preferences. The real test of SFFA will be the degree to which it changes how colleges go about their work. And, on that count, the jury is still out.
Originally published by The James G. Martin Center for Academic Renewal. Republished with permission.
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