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Here’s How Colleges Could Get Around The Supreme Court’s Affirmative Action Ruling

  • After the Supreme Court ruled that affirmative action in education admissions is unconstitutional, legal experts have opined that universities may circumvent the ruling.
  • Chief Justice John Roberts’ opinion enables racial characteristics to be inferred and judged via essays and discussions, wrote the experts, though Roberts’ opinion states that efforts to use race indirectly will also be unconstitutional.
  • “[T]he Court appears to be supplying the draft for college essays,” wrote Professor Jonathan Turley of George Washington University.

After the Supreme Court on Thursday ruled that affirmative action in higher education admissions is unconstitutional, legal experts have opined that colleges and universities may be able to circumvent the ruling’s prohibitions on the practice.

The court’s 6-3 majority opinion in Students for Fair Admissions v. Harvard held that the use of race as an explicit factor in admitting a student violates the Equal Protection Clause of the U.S. Constitution’s 14th Amendment, with Chief Justice John Roberts writing that Harvard and the University of North Carolina’s admissions practices “unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points” when race may be phased out. Some legal experts, however, believe that universities will be able to continue using race by masking its consideration in other aspects of the application process.

“[T]he Court appears to be supplying the draft for college essays. It says that students can still raise (and colleges consider) their individual struggle with racism,” tweeted Jonathan Turley, the J.B. and Maurice Schapiro Professor of Public Interest Law at George Washington University. “[Universities] will now score individual struggles with race as part of the application process. High school academic advisers are likely reframing their essay guidelines as Roberts reads his opinion from the bench,” he added.

Turley’s tweet referred to a passage of the court’s holding where Roberts wrote that “nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university.” In her dissent, Justice Sonia Sotomayor wrote that “[t]his supposed recognition that universities can, in some situations, consider race in application essays is nothing but an attempt to put lipstick on a pig.”

Roberts responded in his opinion by writing that “despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today,” adding that “[a] dissenting opinion is generally not the best source of legal advice on how to comply with the majority opinion.”

Some left-leaning legal scholars echoed Turley’s view. Neal Katyal, a Georgetown University Law Center professor who acted as Solicitor General in the Obama administration, tweeted that the “Court leaves open the door to self-identification,” citing Roberts’ passage in the opinion.

Other experts took a different view and believe the ruling’s prohibitions will be very difficult to overcome in an indirect manner. “[A]ttempts to reverse-engineer particular racial diversity levels—for instance, strongly favoring first-generation college students who grew up speaking Spanish in one-parent households or setting different income thresholds for certain groups of students—may be legally fraught,” said Gail Heriot, a member of the U.S. Commission on Civil Rights, in comments to The Wall Street Journal.

The University of California system may be instructive. After a state referendum in 1996 where voters approved a ban on the use of race in admissions at public universities, the university’s ten campuses established links with minority-heavy high schools and community centers to encourage applicants to apply, with admissions officers then paying attention to those biographical details intersecting with its partnerships, per the WSJ.

Harvard University, in an email following the decision, noted that the court’s decision allows for “an applicant’s discussion of how race affected his or her life,” indicating that it will rely on that phrase to continue regarding race in admissions.

“[I]t does not end *all* race-based affirmative action, but it *severely limits* how universities can consider race in admissions decisions,” tweeted Steve Vladeck, a professor of law at the University of Texas at Austin, while also notingthat “[t]he majority does not expressly overrule Grutter or formally bar *all* race-based affirmative action.”

“It’s ending it without ending it,” said Vladeck.

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