Universities Prepare for End of Affirmative Action

More than 40 years ago, in Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978), the Supreme Court held that institutions of higher education have a compelling interest in attaining a diverse student body and therefore could consider race in admissions, provided such consideration was narrowly tailored. This holding was reaffirmed in both Grutter v. Bollinger, 539 U.S. 306 (2003), and Fisher v. University of Texas at Austin, 579 U.S. 365 (2016).

However, the current composition of the Court differs markedly from the Fisher Court on the issue of racial preferences, and the Court’s recent decisions demonstrate a willingness to disregard stare decisis and overturn precedent. See, e.g., Dobbs v. Jackson Women’s Health Org., 142 S. Ct 2228 (2022). This, along with the questioning during oral argument in the SFA Cases, has led many observers to predict that the Court will prohibit institutions of higher education from considering race as a factor in admissions.

In anticipation of the Court’s ruling, many colleges and universities are taking steps now to ensure they can implement any necessary changes for the 2023 – 2024 admissions cycle. In February 2023, the American Association of Collegiate Registrars and Admissions Officers (AACRAO), in collaboration with College Board, issued guidance to help schools prepare for a decision in the SFA Cases that changes the current law governing the use of race in admissions. Among other things, AACRAO recommends that schools:

• Appoint a review team that includes legal counsel;
• Conduct an audit to inventory all policies, procedures and practices associated with diversity, equity, and inclusion (DEI) efforts;
• Identify and align the institution’s mission with its policies and practices around DEI;
• Plan a response to a change in the law, noting that the Supreme Court decision in the SFA Cases is likely to be issued in June 2023; and
• Develop a strategy for communicating the school’s response to the Court’s decision, both internally and externally.

Additionally, schools are considering adding or strengthening race-neutral strategies for maintaining diverse student bodies if the Court bars consideration of race in admissions, such as:

• Consideration of an applicant’s socioeconomic status, first-generation college status, or geographic residency;
• Special consideration for an applicant from a low-performing school or district or who has otherwise overcome hardship;
• Adoption of a top ten percent plan;
• Development of pipeline programs and partnerships with school districts or community colleges that serve underrepresented groups;
• Increase recruitment and outreach programs targeting underrepresented school districts or geographic areas;
• Enhance mentoring, tutoring or other retention efforts that are open to all enrolled students but focused on issues of particular interest or value to underrepresented populations;
• Increasing flexibility in admissions criteria to de-emphasize test scores, legacy status, and other factors that tend to disadvantage underrepresented minorities; and
• Revising the student aid process to eliminate disincentives for low-income students to participate in the early admissions process and/or reducing advantages to early applicants.

Various studies analyze the impact of these strategies, many of which were developed in states such as California and Michigan after the adoption of state laws that banned race-conscious admissions policies. Some resources schools may find helpful include:

• Zachary Bleemer, Affirmative Action and Its Race-Neutral Alternatives, Journal of Pub. Econ. (April 2023) (studying admissions and enrollment effects of race-neutral policies);
• University of California Office of the President, Research and Analyses on the Impact of Proposition 209 in California (highlighting key research articles and data that examine the impact of Proposition 209 in California on public higher education, contracting, and employment);
• Arthur Coleman et. al., The Playbook: Understanding the Role of Race Neutral Strategies in Advancing Higher Education Diversity Goals, College Board (2d ed.) (providing a guide to the use of college admissions selection criteria and strategies that may qualify as race-neutral under federal law while advancing diversity interests);
• American Association for the Advancement of Science, Jamie Lewis Keith and Arthur Coleman, Neutral Strategies – Students, Diversity and the Law: 2021 (addressing race- and gender-neutral strategies to advance equity-related educational missions);
• Richard Kahlenberg, A Better Affirmative Action: State Universities that Created Alternatives to Racial Preferences (analyzing race-neutral alternatives by profiling nine states where consideration of race/ethnicity in college admissions was banned) (2012); and
• Jennifer Giancola and Richard Kahlenberg, True Merit: Ensuring Our Brightest Students Have Access to Our Best Colleges and Universities (2016) (analyzing how the college admissions process disadvantages high-achieving, low-income students and suggesting strategies to neutralize these disadvantages).

In addition, both the University of California and University of Michigan submitted amicus briefs in the SFA Cases in support of affirmative action, arguing that race-neutral alternatives are insufficient to achieve their desired diversity goals. See Stephanie Saul, “Affirmative Action Was Banned at Two Top Universities. They Say They Need It.,” New York Times (Oct. 31, 2022) (reporting on the SFA Cases, highlighting the amicus briefs from the University of Michigan and the University of California and the post-ban diversity efforts at both universities); Brief for Amici Curiae, The President and Chancellors of the University of California, SFA Cases at 9-20 (arguing in favor of affirmative action on behalf of the University of California and discussing the impact of the university’s race-neutral policies); Brief for Amicus Curiae, The University of Michigan, SFA Cases at 11-28 (arguing in favor of affirmative action on behalf of the University of Michigan and discussing the impact of the university’s race-neutral policies).

As these sources demonstrate, reforming a school’s admissions process is a complex endeavor and there are no easy solutions for schools committed to maintaining racial diversity on campus. The strong possibility that the Court will bar the use of race in admissions makes it all the more imperative that these institutions analyze how such a ruling would impact DEI and make plans to blunt any negative effects.