UNC-Chapel Hill, North Carolina’s most selective public college, admitted less than 17% of applicants for last fall’s first-year class. Now admissions officials may have to change how they pick the students who get in. And not just at UNC. When the U.S. Supreme Court rules this summer on two cases involving collegiate affirmative action policies, it might not only bring to an end UNC’s nearly decade-long legal battle to defend its race-conscious approach to undergraduate admissions — it could also upend admissions practices at selective colleges and universities nationwide.
The court’s ruling in Students for Fair Admissions v. University of North Carolina, expected to be issued before the court recesses at the end of June, will decide whether UNC’s use of race as one of dozens of factors considered in its “holistic approach to undergraduate admissions” is permissible under the 14th Amendment to the U.S. Constitution, which provides equal protection under the law. The case began in 2014 when anti-affirmative action group Students for Fair Admissions (SFFA) filed a lawsuit against the university, alleging the school’s race-conscious admissions practices are discriminatory, especially against white and Asian American students.
SFFA also filed a similar suit against Harvard University in 2014, and the Supreme Court will rule in that case this summer, as well. In that case, the court is considering whether the private university’s use of race in admissions is permissible under Title VI of the Civil Rights Act of 1964, which prohibits racial discrimination in programs that receive federal funding. Both universities have argued — and lower courts have agreed — that their admissions practices are consistent with Supreme Court precedent on the matter. The court has maintained for decades that universities can consider race in admissions if it is done in a limited way, as one of many factors used in the process, and if there is a compelling reason for universities to do so — namely, to achieve a diverse student body and the educational benefits that stem from it. But the current Supreme Court is more conservative than those that have ruled on previous affirmative action cases, and has shown a willingness to discard precedent, perhaps most notably with the overturning of Roe v. Wade last year — leading many legal experts to believe that the court will alter universities’ ability to use race in admissions in some way, or perhaps eliminate it altogether.
“Most people believe that that precedent is not going to emerge intact,” Ted Shaw, a professor at the UNC School of Law who specializes in civil rights and affirmative action, told The News & Observer. “And the question, more than anything else, is how the court’s going to do what many people anticipate it’s going to do — whether it’s going to be, in many ways, overturning, gutting that precedent, or whether it will leave the shell of that precedent intact, but gut it in other ways.” With uncertainty over how far the court will go in potentially scaling back the use of race, colleges are uncertain what changes they’ll need to make to admissions processes in the months and years following the ruling. Asked by The N&O if the university would make anyone available for an interview on possible impacts of the upcoming decision, UNC media relations said in an email: “As the case remains pending, we’re not going to speculate about possible outcomes or scenarios and will not be able to make anyone available to comment.”
PLANNING FOR ‘WHAT-IF’ SCENARIOS
The Supreme Court’s impending decisions in both the UNC and Harvard cases will come just months before universities begin to consider applications in the next admissions cycle.
Such a timeline “implicates lots of change, probably in a very short period of time,” Art Coleman, managing partner and co-founder of consulting firm EducationCounsel, told The N&O. If the court rules that race may no longer be used as a factor in admissions or scales back the use of that factor in some way, universities will likely work to identify alternative factors, and possibly more comprehensive strategies and approaches. They hope those achieve, at least to some degree, the same compelling diversity interests they claim to pursue now. “There’s a lot of planning going on now by a lot of institutions to really think through the what I call the ‘what-if’ outcomes that might occur, and to begin to brainstorm about strategies and options that may set the stage for further discussion in the wake of the court decision, and then action over the course of the summer and fall,” Coleman said.
HOW STUDENTS’ APPLICATIONS COULD BE AFFECTED
In the meantime, prospective students could have to navigate new stipulations on how, or if, colleges can consider their descriptions of their personal experiences — which can be closely tied to race.
During the oral arguments in SFFA v. UNC in October, Supreme Court justices Brett Kavanaugh and Ketanji Brown Jackson focused portions of their questions to SFFA attorney Patrick Strawbridge on the notion of student experiences and their place in admissions decisions, and whether SFFA believed those experiences could still be considered if the use of race was no longer permitted by the court. Asked by Kavanaugh whether a student’s descent from enslaved people or immigrants could be considered acceptable and neutral alternatives to race, Strawbridge responded that he was unsure of whether it would be permissible to consider a student’s relation to enslaved people, because that could be a “proxy” for race, but a student’s relation to immigrants “is probably closer to being OK.” Responding to a question from Jackson, Strawbridge said he did not think a prospective student’s descent from enslaved people was a sound “basis to make decisions about admission of students who are born in 2003,” adding that he did not think “that the Equal Protection Clause suggests that it is.”
Cecilia Polanco was a student at UNC at the time SFFA filed its lawsuit against the university in 2014, and has been involved in the case since 2015 as one of several student intervenors, supporting the university’s race-conscious policies and the diversity they say the policies create on campus. Polanco told The N&O that her identity was a key part of her application to UNC more than a decade ago, and it would have been difficult to separate that identity from the experiences she discussed in her application. “Would I be the same person? Would I be the same applicant, if you just stripped my Latino identity from the application?” Polanco said. “And it’s not like I just check a box of that identity. That is my culture. It shows up in the stories I tell, in my personal essay I wrote.” Much of October’s oral arguments also focused on whether students “check a box” for racial identifiers on their applications and how that information is used by admissions officials to inform decisions.
Attorneys for UNC told the Supreme Court justices that checking a box to indicate race or other identifiers is optional on the university’s application for admission, and the information is not a decisive factor for admission, nor are students penalized for their responses. Previously, in the federal district court trial in the case, UNC lawyers conceded that race may influence decisions to admit students who are “on the bubble,” but such use should not be mistaken for dominance in the process, The N&O reported. Coleman, the education consultant, said the Supreme Court’s focus on the “check a box” idea, in contrast with the separate questions on a student’s personal experiences, could indicate “a real prospect the court could toe this line” of allowing consideration of identity based on application essays, but scaling back the use of race elsewhere in admissions criteria. In its announcement of student essay prompts for the 2023-2024 admissions cycle, the Common Application, a membership-based college application platform used by more than 1,000 colleges nationwide, including UNC, stated that the organization is “closely following the Supreme Court case on the use of race in admissions.”
“Depending on the outcome,” the February announcement said, “we stand ready to create resources that will help students speak about their lived experiences.”
POSSIBLE ALTERNATIVES TO RACE IN ADMISSIONS
If the court rules that race is not a permissible factor to consider in admissions, universities will likely pursue race-neutral alternatives, such as socioeconomic status, which SFFA has argued throughout its legal battle with UNC that the university could use to still achieve its stated goal of achieving a diverse student body. Federal District Court Judge Loretta Biggs, issuing her trial court ruling in the case in 2021, said the university had considered race-neutral strategies, including new methods of recruiting students, offering more financial aid and admitting more transfer students, but there was “no non-racial approach that would promote such benefits about as well as its race-conscious approach.” SFFA’s argument for race-neutral alternatives in the UNC case largely hinged on analysis and expert witness testimony by Peter Arcidiacono, a Duke University economics professor, and Richard Kahlenberg, a writer and consultant who is a leading proponent of class-based affirmative action.
Speaking to The N&O for this story, Kahlenberg said class-based affirmative action, in which applicants of lower socioeconomic status would be given a “boost” in admissions, is an approach that adheres to the idea that “race should not matter in who gets ahead in life,” while also recognizing shortfalls the country has faced in “providing genuine equal opportunity” to minority groups. “I see class as an approach that recognizes both sides of that argument. That is to say, you know, students would not be admitted or (denied) based on their race,” Kahlenberg said. “At the same time, because of discrimination, past and present, Black people and Hispanic people are disproportionately disadvantaged economically, and therefore will disproportionately benefit from consideration of socioeconomic status.” Aside from, or in addition to, using class as an alternative to race, Kahlenberg said, universities might also consider eliminating “legacy” admissions preferences for children of university alumni, increasing the number of community college students who transfer to the university, or increasing the weight of geography as a factor in admissions.
Perhaps the most well-known example of geography-based affirmative action comes from Texas, where a “Top 10 Percent Law” guarantees admission to the state’s public universities for in-state students who graduate in the top 10% of their high school academically. At the University of Texas at Austin, which was involved in its own Supreme Court case over race-based affirmative action a few years ago, the university says the top 10% plan has “had a positive impact on increasing geographic diversity and providing more accessibility to UT Austin to students from all schools around the state.” A federal appeals court recently upheld a race-neutral, geography- and class-based admissions policy at an elite high school in Virginia, which appeared to increase the proportion of Black and Hispanic students admitted to the school. Kahlenberg said compared to SFFA, he takes a “middle ground” position on the use of race in admissions, saying he is not against using race “as a last resort” if a university cannot achieve diversity using race-neutral factors.
STATES WHERE AFFIRMATIVE ACTION IS BANNED
Though the consideration of race remains legal and constitutional under current Supreme Court precedent, nine states have banned race-conscious affirmative action, including California and Michigan, which are home to universities that have been involved in prior Supreme Court-level litigation over the issue.
Those states offer a “laboratory of experimentation” for what universities across the country could experience if the court bans the use of race, Coleman said, and could point to there being “no silver bullets” to addressing diversity and equity goals without that factor. “Achieving diversity and equity goals in a meaningful, consequential way requires a lot of work by a lot of individuals,” Coleman said. The University of California system and the University of Michigan each submitted briefs to the Supreme Court in support of UNC, saying the universities had experienced decreases in racial diversity after race-conscious affirmative action was banned in their respective states, despite race-neutral alternatives they implemented.
Since race-conscious affirmative action was banned in California in 1996, the UC system’s brief said, the system has implemented neutral programs that “run the gamut from outreach programs directed at low-income students and students from families with little college experience, to programs designed to increase UC’s geographic reach, to holistic admissions policies.” The programs “have enabled UC to make significant gains in its system-wide diversity,” the brief said, but “despite its extensive efforts, UC struggles to enroll a student body that is sufficiently racially diverse to attain the educational benefits of diversity.” Beyond emphasizing individual alternative factors to race or even a combination of those factors, then, universities might also choose to take a more comprehensive approach to revising their admissions policies, establishing, revamping or revitalizing efforts that address racial inequity in admissions from a broader perspective.
Coleman said he hopes that colleges wouldn’t attempt to find a solution by “just looking at the admissions calculus and reconfiguring what those factors are.” “I think it is actually a moment to step back and think through a more comprehensive lens, around barriers to racial equity that may be systemically embedded in part of our institutional practice,” he said. Universities could, for instance, increase pre-application outreach to underrepresented minority groups, or reconsider the use or weight of standardized testing in admissions decisions.
Coleman noted that the Supreme Court will most likely rule solely on the use of race in admissions because SFFA’s case “does not go beyond the zone of admissions,” but there is a possibility that “ripple effects” of the decision may extend to other admissions-related programs, such as race-conscious scholarships or financial aid. But broader recruitment and outreach programs, he said, are generally viewed as legally acceptable, because they do not confer “an individual benefit on a particular student.” In the short term, though, Coleman is encouraging the groups and leaders he works with to focus on the most immediate impacts of the decision as they relate directly to admissions. “I think fundamentally, let’s really hone in on enrollment policy and practice, broadly understand the potential implications,” Coleman said, “and then plan for a very busy summer.”
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