What’s Left, And What’s Next, for Racial Diversity in College Admissions

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The Supreme Court has severely limited more than 45 years of precedent holding it constitutional for colleges and universities to consider race in admissions.

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On the penultimate day of the 2023 term, the U.S. Supreme Court released its consolidated opinion ruling that the admissions programs used by the University of North Carolina at Chapel Hill (UNC) and Harvard College violated the Fourteenth Amendment’s Equal Protection Clause. Although the Court did not explicitly overrule Grutter v. Bollinger, it effectively overturned more than 45 years of precedent holding it constitutional for colleges and universities to consider race in a narrowly tailored manner to pursue the educational benefits that flow from diversity.

In what seemed like a radical position, Students for Fair Admission (SFFA) had sued Harvard and UNC alleging that any consideration of race in admissions is discriminatory, even when intended to foster racial diversity, and violates both the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. In its complaint, SFFA sought a permanent injunction requiring that the universities “conduct all admissions in a manner that does not permit those engaged in the decision process to be aware of or learn the race or ethnicity of any applicant for admission.”

The Court largely accepted SFFA’s position, holding that the universities’ race-conscious admissions programs unavoidably employed race in a negative manner for some applicants, engaged in racial stereotyping, and were not time-limited. Writing for the majority, Chief Justice John G. Roberts held that the educational benefits of a diverse student body are not sufficiently “coherent” for judicial review. The Court reasoned that UNC and Harvard failed to articulate a meaningful connection between the consideration of race and the educational benefits of a diverse student body. This is because, according to the Court, racial categories are themselves imprecise. In short, not only does the Court’s majority feel the meaning of diversity is unclear in the universities’ admission programs, but the majority also found the meaning of terms like “white,” “Asian” and “African American” to be too amorphous to factor into admissions decisions.

Nevertheless, the Court did not go so far as to issue a complete prohibition on colleges and universities considering the race of an applicant, as SFFA had requested. The majority emphasized that universities may consider an applicant’s discussion of how race affected their life when that discussion is concretely tied to a characteristic or unique ability of the applicant.

The majority opinion ignores, however, well-established social science research assessing the educational benefits of diversity. This research contradicts the Court’s argument that the benefits cannot be measured. It also ignores the lived experiences of students and alumni, most notably those who provided trial testimony describing how they benefited from racial diversity and the ability to discuss their ethno-racial identity during the application process. The Court also disregards evidence in the record that UNC and Harvard already consider race in the individualized way that the Court seemed to suggest was permissible, as part of a holistic admissions process in which diversity is considered along multiple axes, including but not limited to socioeconomic status, gender, LGBTQ+ status, religion, disability status, geography, nationality, and the intersection of these different identity categories.

Holistic admissions combats stereotyping and essentialism by fostering diversity within diversity and allowing for an intersectional consideration of an applicant’s identity. Severely limiting the consideration of race means that colleges and universities are permitted to freely consider many other identity categories, but race is singled out in a way that unfairly disadvantages students of color for whom race and ethnicity are more likely to be important aspects of their identity. The Court’s decision to restrict discussion of race in college admissions comes at a time when discussion of racial identity and racism is simultaneously being restricted locally in the K-12 setting through book banning, censoring African American history, and legislation prohibiting so-called critical race theory.

Ironically, the majority’s reasoning misuses concepts developed by critical race theorists, engaging in what Professors Devon Carbado and Cheryl Harris have described as “an ‘essentialism per se approach.” Anti-essentialism is the idea that one demographic characteristic of an individual—for instance, race—does not capture the whole of the individual. But to say that race is a social construction, and identity is fluid, does not negate that racial categories exist and have social and political meaning. Scholars who developed the concept of anti-essentialism advocated that recognizing race and gender is necessary to challenge group subordination based on disparities in resources and power, rejecting the conflation of anti-essentialism and colorblindness.

As Justice Sonia Sotomayor reminds us in her dissent, the very same racial categories that the Court finds “troubling” are “used across the Federal Government for data collection, compliance reporting, and program administration purposes.” Tracking of race and racial disparities is necessary because, as she puts it succinctly, “equality requires acknowledgment of inequality.” In the context of education, systemic inequities disadvantaging underrepresented students lead to opportunity gaps and fewer underrepresented students of color applying to college. Rejecting the majority’s reliance on Brown v. Board of Education to advance a formalistic rule of race-blindness, Justice Sotomayor argues that the ultimate goal of Brown was “to achieve a system of integrated schools that ensured racial equality of opportunity.”

Justice Ketanji Brown Jackson, writing a dissent in the UNC case, also disputes a colorblind notion of equal protection, describing how racial disparities in health, wealth, and other arenas of American society persist and are perpetuated by government policy. She concludes that “requiring colleges to ignore the initial race-linked opportunity gap between applicants … will inevitably widen that gap, not narrow it.”

What’s left for colleges and universities committed to pursuing the educational benefits that flow from diversity? No doubt the decision is likely to have a chilling effect on universities’ willingness to consider race in the admissions process. While the Court affirmed that colleges and universities may consider an applicant’s discussion of how race impacted them, “be it through discrimination, inspiration, or otherwise,” the Court also warns that “universities may not simply establish through application essays or other means the regime we hold unlawful today.”

The Court did recognize that race-conscious remedies are permissible when there is a compelling interest in remedying discrimination. In addition,  Justice Brett M. Kavanaugh’s concurrence reiterates that colleges and universities can still rely on race-neutral strategies that advance the educational benefits of a diverse student body at institutions of higher education. But as I have previously argued, race-neutral strategies for cultivating racial diversity and pursuing equity are also under attack.

Colleges and universities should consider how to more meaningfully address discrimination in education. In Pennsylvania, for example, the Commonwealth Court recently ruled that public schools are unconstitutionally underfunded and that the current underfunding of low-wealth districts, which frequently serve higher-need students and students of color, violates principles of equal protection. Colleges and universities in the Commonwealth should prioritize admission of students from schools that were found to be underfunded in violation of the Pennsylvania Constitution. Such an approach would be race-neutral and a way of addressing what a state court found to be a constitutional violation. Moreover, for many colleges and universities, addressing the racial and socioeconomic opportunity gap locally is directly connected to the educational mission of attracting and retaining a diverse student body and ensuring that talented students who live in their region are not overlooked.

Finally, it is critical to remember that universities have an affirmative duty to comply with Title VI of the Civil Rights Act of 1964 and its implementing regulations that require eliminating unjustifiable policies that disproportionately exclude students of color. Universities should carefully review policies, such as legacy admissions, which have the effect of disadvantaging students whose families lacked access to institutions of higher education in previous generations and disproportionately favoring white and wealthy applicants.

Within a week following the Supreme Court’s decision in the Harvard and UNC cases, attorneys with the public interest nonprofit organization Lawyers for Civil Rights filed a Title VI disparate impact complaint challenging Harvard’s “tip” in admissions to legacy applicants and children of high donors. Although the Supreme Court’s decision will more deeply entrench inequality in educational opportunity, advocates fighting for racial justice are already reimagining what it means to pursue education equity in a multiracial democracy.

Cara McClellan is Director and Associate Practice Professor of the Advocacy for Racial and Civil (ARC) Justice Clinic at the University of Pennsylvania Carey Law School. She previously served as a member of the legal team representing Harvard student and alumni organizations as amici-plus in support of race-conscious admissions in Students for Fair Admissions v. Harvard.

This essay is a part of a nine-part series entitled The Supreme Court’s 2022-2023 Regulatory Term.