Affirmative Action Supreme Court

Alon Dasa

The supreme court might rule on affirmative action in the next couple of weeks. If it gets eliminated would that change anything for law school applications?

Matt Sorr

I’m no legal expert, but the only way I could see it noticeably altering apps is the possible elimination of URM status consideration. There’s no way to know how the court will rule, nor how far their ruling will go, but if they do rule that race can’t be considered at all in college applications, I’m not sure how URM status could still be tracked.

With that being said, I must give a couple disclaimers: First, it’s totally possible schools will continue tracking URM status through different means if the court outright rules against the consideration of race in apps. I’m not sure how they would, but I have very little insight into the admissions game. Second, as I mentioned earlier, I am no legal scholar. Hell, I haven’t even taken the LSAT yet. So everything I’ve said is just how I, at first glance, am trying to make sense of the possible outcomes. I could be way off.

Steven_B-1

@"Matt Sorr" I was thinking about this as well. I think that the schools would probably continue "unofficially" weighing URM status from what they glean from someone's personal and/or diversity statements. That could be one way to still inform the school that you are an URM even if the official channel (the app) is removed.

By teh way, I'm just spitballing here. I have no idea. But i am interested in knowing how this would affect the admissions process.

Cant Get Right

I’m not exactly a legal scholar either, but I do have a JD, have studied the affirmative action line of cases, and am pretty familiar with the general thinking of the current lineup of Justices. My prediction is that they will end the consideration of race in university admissions. There are two main arguments I expect to be made. 1. The practice is and always was unconstitutional and the whole line of cases okaying and affirming it were wrong all along. Thomas and Alito will almost certainly take this line. 2. Affirmative action may have been constitutional at one time but has run its course and is now unconstitutional. I expect this is probably where CJ Roberts will land, but he could also just join with Thomas/Alito if he's feeling froggy. I don’t know the Trump appointees as well as the OG’s, but I'm not expecting any surprises: The vote will be 6-3.

As far as moving forward, it likely will have some impact, but perhaps not to the extent people may imagine. Schools can still consider diversity factors, they just won't be able to consider race as one of them. Race is a protected class, so it can be legally tricky. But things like poverty and experience aren't protected: You can discriminate on the basis of economic status all you like. See San Antonio v. Rodriguez (1973). If you want to segregate lunch counters and buses and swimming pools, etc based on income, that's not a legal problem at all. That means that schools could, for example, consider that an applicant grew up poor on the South Side of Chicago and lost a sibling to gang violence. We don't know this applicant's race. But there are statistical probabilities involved here to which admissions need not be ignorant. Schools could even reserve a set number of seats for poor applicants. Unlikely, but legally fine. This was the sort of thing, when done using race, was ruled unconstitutional in Bakke, which is one of the main cases about to be struck down.

So yes, the Court is going to strike this down. But Universities will still find legal ways to ensure diversity in the classroom. At least since Washington v. Davis (1976) and Arlington Heights v. Metro Housing (1977), legal actions which "happen" to disproportionally harm minorities are perfectly fine, legally speaking. Conversely, those which happen to help are protected as well.

claremont

@"Cant Get Right" ,

Do you anticipate that those other avenues schools will utilize to ensure a diverse class are already in place or do you think they will need time to incorporate them into their decision making process?

I would imagine if the ruling was to have any noticeable effect on applications it would be during this cycle; however, it seems possible to me that admissions could accept more URMs earlier in the cycle than normal in order to meet their diversity goals in anticipation of the ruling.

Alon Dasa

@"Cant Get Right" thank you for you thoughtful insight!
If schools do put more consideration towards economic status and upbringing, would this be brought up more in the personal statement part of the application (I.E. more subjective)? And not just checking a box (I.E. Race check box)

Cant Get Right

I should probably note before going any deeper into this that I haven't actually followed this case coming up before the Court. I've read news coverage, but none of the actual case materials or anything. So all of this--and everything above--is pure speculation primarily based on background in the relevant case law, specifically, and Constitutional law generally. So please don't interpret any of this--above or below--as anything more than armchair quarterbacking.

@"Alon Dasa" said:
@"Cant Get Right" thank you for you thoughtful insight!
If schools do put more consideration towards economic status and upbringing, would this be brought up more in the personal statement part of the application (I.E. more subjective)? And not just checking a box (I.E. Race check box)

Right, I'm not sure if they'll be able to have a "box" for race at all. It's possible they still could though, just not for the purpose of considering it as a factor in admissions decisions. There could be other purposes and, if so, this would likely be fine for those other, limited purposes. I'm not sure what those other purposes might be, I'm just emphasizing the scope of what this decision will likely prohibit which is very specifically: consideration of race for the purpose of college admissions.

For applicants who want to put forward socioeconomic status as a matter of diversity, that could be done in a PS or diversity statement. Diversity statements aren't going anywhere. The instructions will change so as not to explicitly ask for race as a diversity factor. Beyond that, I don't see any reasons why applicants couldn't still discuss race in a diversity statement. I don't think the Court is interested in or capable of delineating precise guidelines for what is and is not acceptable for applicants to find meaningful in their lives and identities and, thus, worthy of discussion in college application essays. They can only tell schools what they can and can't consider for admissions decisions. So schools won't be able to ask about race or to consider race in admissions decisions, but that doesn't mean applicants have to keep it a secret or that schools will have to create some sort of pre-screening to redact any mention of race.

@claremont said:
@"Cant Get Right" ,

Do you anticipate that those other avenues schools will utilize to ensure a diverse class are already in place or do you think they will need time to incorporate them into their decision making process?

I would imagine if the ruling was to have any noticeable effect on applications it would be during this cycle; however, it seems possible to me that admissions could accept more URMs earlier in the cycle than normal in order to meet their diversity goals in anticipation of the ruling.

Yeah, I think the main tool will remain the diversity statement. The difference will come in tweaks to the prompts on the application material and to the internal process. They may be a bit cautious until we figure out exactly what's going on. The main legal challenges from whatever the new practices will be will come from disparate impact challenges which traditionally have been pretty hard to win on. Very basically, disparate impact is where an otherwise legal action not rooted in race disproportionally harms a racial (or other protected) class. As long as race isn't an explicit factor and the actor can make up a plausible explanation for the action's purpose which is anything other than to racially discriminate, the action is allowed. You see this a lot with zoning. In one of the cases I cited above--Arlington Heights--they claimed they weren't purposefully trying to keep Black residents out, they were just trying to keep multi-family housing out. If the single-family zoning priced out an overwhelming majority of Black Chicagoans from the area, well huh, what a coincidence. The Court ruled that that was A-Okay. The point is, disparate impact is an uphill climb. Of course, it's totally possible that--for no particular reason--disparate impact claims could become a little easier in limited contexts such as these. Who could say. But with current standards, schools will be able to do anything but explicitly ask about race and openly consider race as a factor for admissions decisions. If they don't do that, then they can do whatever they want so long as they have a plausible explanation for it which is anything other than racial discrimination.

It's been a while since I've studied this stuff, so don't quote me on any of this. But, generally, this is sort of how this stuff works. And again, as to how this will impact law school admissions, I'm totally speculating.

Alon Dasa

@"Cant Get Right" Thank you again !!!!!!!!!!!!!!!!!

Lets just assume that on the extreme end of it, race can no longer be checked off/ put in an application strictly speaking on the form part not the personal statement/ diversity. Would that mean that, URM would be completely different and more based of personal experiences/ socioeconomic class? And if it's socioeconomic class, do you think there would be a requirement or spot to put economic status/ income? And if socioeconomic class would have a determining factor in acceptance. Or would it just be much more heavily reliant through diversity statements and personal statements? (I.E. Subjective). Because with Race its more of a concrete categorical based system (not perfect) which is also reviewed when applying for the Bar Exam/ Acquiring an Attorney's license. I understand this is just your opinion and pure speculation but it's still a thoughtful insight/ valuable opinion. Hopefully this makes sense.

My question shortened is assuming race is completely out of the application, do you think there would be a much heavier emphasis on personal statements and diversity statements (OBVIOUSLY EXLCUDING LSAT SCORES AND GPA), or do you think there would potentially be a place/box where socioeconomic class is put in ?

I appreciate you taking the time providing info and your opinion.

Thank you JY

SC heard the two cases on Monday. Justice Kavanaugh said it’s too late to do anything about affirmative action this cycle. Expect a decision a few months before the start of the next cycle