The Practicalities of Federal and State Law in College Admissions
EDITOR’S NOTE: The opinions in these essays are those of the author and are not necessarily the opinions of the American Institutes for Research (AIR), its staff, or its leadership. The AIR Equity Initiative is publishing this essay in its role as a convener of ideas and insights about topics that are relevant to its work and AIR’s mission. Return to main essays page: Is There a Path Forward? Affirmative Action in Higher Education After the Supreme Court’s Decision.
By Matthew Patrick Shaw
Last week, the U.S. Supreme Court ruled in Students for Fair Admissions v. Harvard College and Students for Fair Admissions (SFFA) v. University of North Carolina (UNC) that race-conscious admission policies violate the Fourteenth Amendment Equal Protection Clause. In a consolidated opinion, Chief Justice John Roberts banned colleges and universities from considering individual race in admissions. The majority did not find the so-called “diversity rationale” unconstitutional. But the six Justices found that the value of race as race is immeasurable, both standing alone and in possible fulfillment of the universities’ compelling interests in academic quality and student-body diversity. As a result, the Court found that race-conscious admissions practices evade the constitutionally required strict scrutiny. In addition, it found that institutions’ specific use of race relied on racial group stereotypes and operated as a negative factor against Asian Americans.
While expected, this decision was surprisingly narrow in scope. Effectively, higher education institutions cannot ask individual applicants about their race—directly or indirectly. But that’s it. Applicants themselves can supply information in essays or interviews that speak to their experiences with race and racism, whether positive, neutral, or negative. And, far from being prohibited from reviewing this information, the majority opinion actually endorses such considerations. The opinion was silent about other affirmative action strategies like targeted applicant pool recruitment, yield, and student support programs.
Does this portend a sea change in higher education?
Not necessarily. Much of this is because this admissions controversy has been functionally an issue only among the small handful of selective colleges across the higher education marketplace. But some of the reduction in impact will also be due to shifts that have occurred within the selective college marketplace over the past 30 years. Public colleges in eight states are already banned from having race-conscious admissions policies. And so, the recent decision won’t have any real impact on state institutions in Arizona, California, Florida, Idaho, Michigan, Nebraska, New Hampshire, and Oklahoma.
It might not have much of an impact elsewhere because the higher education industry has been taking steps since Grutter—even more so since Fisher II—to move away from heavy reliance on race-conscious admissions practices to accomplish diversity of all kinds. Very few selective public colleges in the South truly returned to robust considerations of race after Grutter. And there is strong evidence that race matters less in admissions decisions among selective public colleges outside the region. Until now, the Court’s affirmative action decisions have spared private colleges entirely. Now, selective private colleges, which unlike their public counterparts have continued to consider race, are flatly prohibited from doing so. And so, where we might expect an effect on admissions, it will likely be stronger at the private Stanford University, but little to none at the University of California, Berkeley, where race-conscious admissions practices have been banned since 1996. At the same time, one might expect similar effects on admissions at the private Duke University and the nearby public UNC because both are experiencing new bans simultaneously. But we shouldn’t expect the dramatic shifts we saw at Berkeley in the 1990s or at the University of Michigan-Ann Arbor after a statewide referendum banned affirmative action practices in 2006.
The reality on the ground is that the higher education sector has been preparing for this moment for the balance of 30 years. Admissions strategies have shifted across the board. Some have embraced recruitment and yield focuses on first-generation students and students from low-income backgrounds. Some have adopted test optional practices, and some have reduced the weight that family legacy performs in individual admissions decisions. Many employ all of these strategies and more. To the extent that socioeconomics-targeted programs will capture applicants and students of color with greater financial need; first generation-targeted programs will capture those who need supports around those experiences; and legacy admissions will capture applicants and students of color with multi-generational ties to institutions; colleges and universities can still construct the class cohorts they wish.
We should probably pay more attention to private liberal arts colleges that, unlike their larger university competitors, have continued using more directed strategies to attract applicants from minoritized communities of color. Targeted race-based scholarship programs, including so-called “minority scholarships,” are almost assuredly banned among all institutions in the college marketplace after last month’s decisions. Previously, they had only been banned among public colleges.
How might all of this affect students’ college choices?
Because so much of the opinion was narrowed to the specific use of individual race identifiers in college admissions the effect it has on students’ college choices will depend largely on how individual institutions respond. Those institutions that have already included optional, supplemental essay questions prompting applicants to disclose information that will help the relevant committee assess their application could experience limited to no change in class compositions. This is because they have already incorporated the specific practice the Supreme Court approved without putting students in a Sophie’s choice of sorts where they would have to decide between discussing non-race-associated aspects of their academic profile and indicating their experiences with race in ways that previously they might not have chosen. Those that haven’t yet incorporated these practices will induce the aforementioned Sophie’s choice. Any that introduce an optional essay following the SFFA decisions might also face scrutiny of their decision as cryptically race-based given its timing. Some institutions might respond preemptively by ending race-conscious recruitment and yield programs. This would exacerbate existing race-associated information gaps, especially about liberal arts college opportunities. Any of these institutional interventions might have downstream effects on the racial composition of applicant pools, admissions, and yields.
At the same time, we might actually observe a leveling. Because race-conscious admissions are now banned writ large, public colleges in affirmative action banning states that have experienced declines in Black and Latinx student enrollment might experience a small uptick. But that would have to come with improved interest in these institutions among students from these demographic groups. It may be too little too late. It is hard to predict how a universal ban might influence college choice behaviors toward selective colleges where race-conscious admission have already been banned. It is likelier that we will observe a shift by minoritized students of color from selective institutions to less selective institutions, especially if a ban is interpreted as a signal that they are unwelcome.
Market shifts have previously occurred in response to societal events. Historically Black Colleges and Universities (HBCUs) have experienced massive growth in Black student applications, admissions, and yields following campus protests on majority-White campuses amidst the broader racial reckoning currently taking place in all sectors. HBCUs’ successful fights for financial and resource equity—from governments and private donors—has reinvigorated these institutions and positioned many well to become and remain among selective institutions. However, HBCUs now have to be careful to avoid race-targeted admissions programming, too. To the extent these colleges have, in pursuit of their mission, explicitly admitted students into select programs influenced by improving Black-student participation and outcomes, these efforts, too, are up for scrutiny.
Matthew Patrick Shaw is an assistant professor of law and public policy and education at Vanderbilt University. He is the author of articles and chapters that include “The Public Right to Education” and "Bans on Affirmative Action in States with a History of State-Sponsored Discrimination.” Shaw holds degrees from the University of North Carolina, Columbia University, and Harvard University. Previously, he was a fellow at the American Bar Foundation and clerk for then-Chief Judge W. Louis Sands of the U.S. District Court in Georgia before practicing law in Atlanta, Ga.