The U.S. Supreme Court looked behind the curtain. Then it knocked over the table and chairs. Now, colleges are left with one big mess and a slew of questions that will define a new era for college admissions in a nation riven by racial disparities.
In its long-awaited decision on Thursday, the court held that the way Harvard University and the University of North Carolina at Chapel Hill had considered applicants’ race violated the 14th Amendment’s Equal Protection Clause. The ruling, split along the court’s ideological lines, essentially struck down four-and-a-half decades of legal precedent allowing institutions to consider race as one of many factors in their evaluations. The decision, every bit as drastic as many college officials had long feared, will shift the way many admissions offices assess students. And it will likely change, perhaps dramatically, the racial and ethnic makeup of many campuses.
The ruling was a resounding victory for Students for Fair Admissions, known as SFFA, which sued Harvard and UNC, in 2014. For all the complexities contained within the two cases, SFFA’s argument in each boiled down to this argument: Race-consciousness is no different than racial discrimination. And in the end, the court agreed.
Writing for the majority, Chief Justice John G. Roberts Jr. forcefully rejected Harvard and UNC’s race-conscious admissions practices. Anyone who reads the opinion closely will detect the same apparent impatience with colleges, the same mistrust of their methods, that he and other conservative justices expressed during oral arguments last fall. The court concluded that Harvard and UNC’s stated goals were too elusive, too difficult to measure, to withstand strict scrutiny.
Above all, the court agreed with SFFA’s contention that the Constitution requires colorblindness in all federal laws, a notion that derives from a particular reading of the 14th Amendment, which guarantees “the equal protection of the laws” to all U.S. citizens. An applicant, Roberts wrote, “must be treated based on his or her experiences as an individual — not on the basis of race. Many universities have for too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice.”
That conclusion reveals the gulf between two readings of the Constitution. Two notions of merit in admissions. Two understandings of the role that race plays in shaping students’ educational opportunities.
Justice Ketanji Brown Jackson, who is Black, slammed Roberts’s conclusions in her dissent. “With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat,” she wrote. “But deeming race irrelevant in law does not make it so in life.”
And Justice Sonia M. Sotomayor, the court’s lone Latina justice, wrote: “Today, this Court stands in the way and rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits. In so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.”
The court did not state explicitly that it had overturned Grutter v. Bollinger, the 2003 decision that upheld the limited use of race in admissions to achieve the educational benefits of diversity. But in his concurring opinion, Justice Clarence Thomas, wrote that the majority’s opinion clarifies that “Grutter is, for all intents and purposes, overruled. And, it sees the universities’ admissions policies for what they are: rudderless, race-based preferences designed to ensure a particular racial mix in their entering classes.”
Art Coleman, managing partner and co-founder of EducationCounsel LLC and a supporter of race-conscious admissions, called the court’s ruling disingenuous. “It’s saying, ‘Here are the factual reasons why Harvard and UNC failed to meet the standard of Grutter,’” he said. “But when you actually step back and read the opinion, they eviscerated the Grutter standard, saying that the educational benefits of diversity of are no longer sufficiently concrete or capable of our evaluation. What they have done, I think — perhaps fearful of yet another decision that calls out the radical nature of the court opinion — is simply an attempt to tread within the zone of ‘We’re simply applying precedent, and you lose.’”
The court’s decision leaves the nation’s colleges in a challenging position: How to enroll a diverse student body in a land where race continues to matter while using an evaluative process in which, all of a sudden, 44 years after Bakke, race can’t matter?
For higher ed, this is a moment of psychology more than a moment of legal compliance.
That leads us to another question, perhaps the most immediately compelling one arising from the court’s opinion: Is a college still free to consider an applicant’s race and ethnicity if they choose to reveal those aspects of their identity, say, in admissions essays or responses to short-answer questions? And, if so, how will that work?
“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,” Roberts wrote. “But … universities may not simply establish through applicant essays or other means [what] we hold unlawful today.”
Roberts goes on to say that a “benefit” given to an applicant who overcame racial discrimination “must be tied to that student’s courage and determination.” A benefit given to a student whose heritage or culture inspired them to pursue a leadership position or goal “must be tied to that student’s unique ability to contribute to the university.”
And so, he concludes, “the student must be treated based on his or her experiences as an individual — not on the basis of race.”
Yes, colleges apparently will be able to pose specific questions to applicants that might well end up inviting them to describe how their racial and ethnic identity shaped them in some way. But, no, admissions offices shouldn’t see this as a loophole for getting around the court’s ban on considering race in itself.
“They have preserved, in essence, the dignity of the individual, which is a cornerstone of 14th Amendment jurisprudence,” said Coleman, a former deputy assistant secretary of the U.S. Department of Education’s Office for Civil Rights. “Applicants can tell the story of their lived experience, their life perspective, and what they think they could bring to an institution. But the minute you start to make any judgment simply tied to an applicant’s race, it’s problematic. It’s an infinitesimally fine line, but it is a line that we’re going to have to draw.”
How admissions offices might adjust their applications to thread that needle will be among the important developments to watch. Some experts expect selective colleges to add new essay prompts — or adjust existing ones — about applicants’ lived experiences in response to the decision.
But those fine-grain practical details relate to deeper questions about race, says Dominique J. Baker, an associate professor of education policy at Southern Methodist University. “The majority’s opinion rejects the reality of structural racism,” she said. “It hammers in on the individual’s experiences with racism, but not the way that we have created our society and systems that support racism. How can you acknowledge that individual people experience racism without acknowledging that our systems are built to do this?”
Baker, a former admissions officer, said she worries that colleges will, for perhaps understandable reasons, overreact to the ruling and enact other changes to admissions and financial-aid practices that might not be necessary. “Colleges really don’t like litigation — they would prefer not to be sued,” she said. “The opinion states that this is only about admissions decisions, but my concern is that that won’t stop institutions from being scared about lawsuits and making other types of decisions.”
After reading the court’s opinion on Thursday, Angel B. Pérez, chief executive of the National Association for College Admission Counseling, expressed concerns about the short- and long-term impact on colleges’ efforts to maintain a racially and ethnically diverse student body. “Today’s decision is going to make it lot harder and a lot more expensive … to bring in a diverse class,” he said. “My concern, and the association’s concern, is that the majority of states and institutions don’t have those resources, but they also don’t have the current political will.”
Pérez also worried about the human impact of the decision among young Americans. High-school counselors, in particular, he said, will have to contend with “the potential psychological effects on students of color in this country right now, who may not necessarily feel like they belong or they matter.”
That’s an especially urgent concern in an era of growing skepticism of colleges and the value of a degree. “Colleges really have their work cut out for them in terms of really making sure that they’re thinking very long and hard about recruitment efforts, and probably expanding those recruitment efforts,” said Jessie Brown, senior vice president and chief of staff at the American Council on Education. “It will be important for institutions to really look at the overall big picture, about the whole-institution approach to recruiting. It won’t just be enrollment managers acting in vacuum. They’ll need to be working with presidents, provosts, academic deans, and student-affairs leaders and really trying to make sure that this one Supreme Court decision doesn’t derail all of their diversity efforts.”
The court’s decision will likely force institutions to confront difficult questions about the fairness of other components of their admissions processes. On a day when many college officials were licking their wounds, one leader candidly described the inconsistencies he sees in many selective colleges’ admissions policies.
“We are well aware that legacy admissions and other preferential-admissions practices are overwhelmingly biased in favor of white students,” said John L. Comerford, president of Otterbein University, in Westerville, Ohio. “It just smacks of hypocrisy to defend the importance of diversity in classrooms while you’re doing these things, by your own choice, that close the door on students of color. Colleges do it out of a sense of elitism and prestige, and concern about trying to keep donors happy.”
Otterbein does not consider race in admissions. But over the last five years, Comerford said, the university had increased enrollments of students of color, from 12 percent to a projected 35 percent this fall. How? Through partnerships with urban school districts serving diverse student populations, greater investments in need-based financial aid, and doubling down on ways to make the campus a more welcoming place for all students, he said.
“It’s high time that our industry is called out for talking a lot about diversity and inclusion,” Comerford said, “but not practicing it in terms of how we actually recruit, retain, and support students with financial aid. Often the walk does not match the talk.”
The court’s decision revealed a fundamental tension between two views of what’s really at stake in selective admissions. In one view, it’s a simple equation in which one applicant’s plus is another applicant’s minus. In the other view, it’s a complex, individualized evaluation of numerous factors all at once, in which the outcomes benefit a diverse society. Though the former view prevailed, the latter remains as important as ever for colleges to hold close.
“We have moved away from thinking of higher education as a public good to more of an individualistic, how-I’m-going-to-get-ahead perspective,” Liliana M. Garces, a professor of higher education at the University of Texas at Austin, told The Chronicle in a recent interview. “But if we come back to the public mission of higher education and its role in advancing the democratic goals of a multiracial society, we understand that institutions trying to build a diverse student body is advancing interests that benefit all of us in a multiracial democracy, by building capacity for diverse students to become leaders. If you ground yourself in that public role and mission of higher education, college admissions is not a zero-sum game.”
The big question: Will the court’s decision prompt a moment of retrenchment, or a new push to recruit, enroll, and finance a student body that reflects the diversity of the nation? And what are institutional leaders prepared to do, and not just say, about their commitments to such goals?
Coleman, at EducationCounsel, put it this way. “For higher ed, this is a moment of psychology more than a moment of legal compliance.”
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