The man who led the lawsuit that upended universities’ race-based affirmative action policies warned schools against trying to find a workaround by asking Black and Hispanic applicants to focus on their race or ethnicity in their admission essays.
Edward Blum, president of Students for Fair Admissions, said he read the Supreme Court’s ruling last week to mean that schools cannot even ask about race. That includes eliminating race and ethnicity check boxes on applications.
Mr. Blum said applicants can mention their race in their essays, but schools should be reluctant to do too much with that information.
“It is our belief that race boxes are not allowed on college application forms,” he told The Washington Times. “A careful reading of the opinion notes that it must not be the race of an individual that is considered, but rather the personal qualities developed as the outcomes of certain events.”
He said he would watch how schools comply with the ruling and use open-records requests to obtain public schools’ admission data.
The high court last week struck down the race-based affirmative action policies at Harvard University and the University of North Carolina, and a search for alternatives kicked into gear.
Affirmative action supporters seized on a line in Chief Justice John G. Roberts Jr.’s controlling opinion. He said the ruling does not prohibit schools from “considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”
He cautioned, however, that schools can’t use these discussions merely to give advantages to applicants with preferred races or ethnicities.
“Universities may not simply establish through application essays or other means the regime we hold unlawful today,” Chief Justice Roberts wrote.
Harvard University, in particular, cited the chief justice’s words in its statement on how it would comply with the ruling.
Carolyn Shapiro, co-director of the Institute on the Supreme Court of the United States at Chicago Kent College of Law, said the ruling gives schools leeway to consider characteristics mentioned in essays relating to race or diversity.
“Schools can take that information into account,” said Ms. Shapiro, adding that universities may be “skittish” about where to draw the line.
Schools had defended their race-based affirmative action policies by saying they were critical to achieving diversity, described as a core educational value.
In their ruling, the justices debated options besides an explicit focus on race.
Justice Neil M. Gorsuch suggested that schools could achieve more diversity if they ditch preferences for applications from relatives of alumni, donors and faculty, which chiefly benefit White students.
Other analysts have suggested using geographic or socioeconomic factors that could track closely with race.
A case involving a geography-based affirmative action program at Thomas Jefferson High School for Science and Technology, a high-profile public school in Fairfax County, Virginia, is winding its way through the courts.
Whether and how schools use essays remains to be seen.
Adam Feldman, creator of the Empirical SCOTUS blog, said the ruling left a “big gap” in interpreting mentions of race in essays. Lower courts will fill that gap for now, he said.
“You are going to see cases on affirmative action decided on the facts, to see if — to what extent — universities are using race in their acceptance processes,” Mr. Feldman said.
He said the issue could eventually go back before the justices, but “at this point, it’s very vague.”
Curt Levey, president of the Committee for Justice, said he expects schools to try to “cheat” on the high court’s ruling.
“But Roberts did say that schools can’t do indirectly, using essays, what the Court said they can’t do directly,” Mr. Levey said. “One thing is for sure: We can expect to see a lot of litigation addressing exactly when facially race-neutral admissions criteria are being used as a cover for illegal discrimination.”
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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