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Now What? Practical Tips for Colleges After U.S. Supreme Court's Affirmative Action Ruling

    Client Alerts
  • July 11, 2023

College and university admissions will now be more subjective, complex, and — as a result — expensive for many schools. Those are a few takeaways from the U.S. Supreme Court’s ruling on June 29 effectively ending affirmative action programs.

Many leaders at colleges and universities with competitive admissions are now debating how to update, if not overhaul, how they decide who gets in. In doing so, they have a potential road map to use from colleges in nine states that already banned race-conscious admissions. They also can use specific guidance from the ruling on how race can play a role in the context of an individual’s experiences. Across the board, it will be critical for admissions departments to be precise in documenting both the goals for their policies and the basis for their decisions.

What Is and Is Not Permitted Based on the Ruling

Writing for a 6-3 majority, Chief Justice John Roberts laid out five major reasons to strike down the race-based admissions programs before the court:

  1. What the universities were trying to accomplish was not measurable enough to withstand strict scrutiny analysis under the Constitution’s due process clause.
  2. The racial classifications the universities were employing were too broad and left out certain minority populations.
  3. The racial preferences were acting as a negative factor for applicants of other races. (“College admissions are zero-sum,” as the chief justice put it.)
  4. The programs rested on what the court called racial stereotypes.
  5. The programs lacked end points, as the Supreme Court described its precedents as authorizing “race-based student assignments for several decades—but not indefinitely into the future.”

The ruling also laid out what remains permissible: “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”

“A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination,” the court said. “Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race.”

How Colleges and Universities Can Adapt

One result from the court’s guidance is that many colleges and universities will now put even more emphasis on applicants’ essays, which are a more subjective measure of a student’s potential. To be sure, there was already a trend in that direction among various admissions departments, some of whom have reduced or eliminated their reliance on quantitative scores from the SAT or ACT. The ruling will accelerate that trend.  

An increase in subjective measures will almost certainly require an increase in personnel to assess those measures and training for those personnel. That will make it more expensive, and potentially more cumbersome, for universities to effectuate admissions policies designed to increase diversity.

As universities consider staffing changes, they could evaluate the makeup of their admissions department itself to ensure it reflects the population they are looking to serve. In particular, it could be valuable to add diverse personnel to score essays. Admissions committees will also want to review how they score essays to ensure a consistent process that measures students as individuals as opposed to as part of a racial category. The ruling made clear that “universities may not simply establish through application essays or other means the regime we hold unlawful today.” Universities may face litigation in the future on that exact point, so thoroughly documenting their goals and processes — and training their personnel on all the above — will be critical.

Universities may also adopt ideas from schools in the nine states where race-based admissions were already banned. Examples of approaches from those states include focusing on socioeconomic backgrounds as well as geographic diversity across urban, suburban, and rural areas. In two of the states, Texas and California, certain public universities also grant automatic eligibility to state residents who meet academic criteria, such as finishing in the top 10% of their high school class. Additionally, the University of California (UC) system has focused on recruiting and outreach efforts, including programs aimed at students from families who are low income or who have little to no prior experience with higher education. 

Those efforts have increased enrollment among low-income students and those who will be the first in their families to graduate from college, according to a friend-of-the-court brief filed with the Supreme Court. But in that brief, UC’s leaders ultimately concluded that race-neutral measures were “inadequate” in achieving the educational benefits of diversity.

Another measure universities could consider is reducing the importance of family legacy as part of the admissions process. Giving less of a preference to families who have previously attended the university could help broaden access. The counter-argument, however, is that those families can often be strong supporters of the university, including financially. It is important to consider both the intended and potentially unintended effects of that and other policy changes.

As a final point, it is worth remembering that attracting a diverse student body is not just about the admissions process. It is equally important to consider the offerings for diverse students once they arrive on campus. What will life be like for those students? What kind of organizations are there to support them? How welcome will they feel walking around campus and sitting in class? Improving the answers to those questions would not only help in attracting diverse applicants — it would also improve the experience of the students who are already there.

For more information, please contact us or your regular Parker Poe contact. You can also subscribe to our latest alerts and insights here.