Rarely can we tell you with 100% certainty what admissions officers are doing at any one time. Sure, we write entire blog posts about how they’re hosting admitted students on campus, or prepping for waitlist activity, or attending a professional conference. But—like—what are they doing right now? Well, the past few days have been a rare time when we can tell you exactly what they’ve been doing. At 10 AM Eastern last Friday, for example, they were updating their news websites of choice (I’m partial to scotusblog for stories of this nature) to see the decision issued from the Supreme Court regarding the Students for Fair Admissions (SFFA) cases against Harvard and the University of North Carolina. Since then, AdComms have been meeting repeatedly with various constituents at their law schools and universities (including their Offices of General Counsel) to parse out the decision and decide what to do in its wake. At 7Sage, we’ve also been taking stock of matters so as to provide the best guidance possible to our students. So let’s take a few minutes today to do our best—since this is still a developing story—to contextualize this decision and what comes next for students.

Before diving too deeply into the aftermath of SFFA v. Harvard, it’s useful to provide some historical perspective. Higher ed admissions officers have developed their current diversity recruitment practices based on five post-Civil Rights Act decisions. The first was Bakke in 1978 which ruled that race could be considered in the admissions process but that universities could not utilize strict racial quotas. Affirmative action programs were further narrowed in the Grutter and Gratz decisions of 2003 regarding admissions practices at the University of Michigan. Grutter affirmed that considering race when attempting to enroll a diverse class was permissible as long as the practices to obtain a diverse class were narrowly tailored. The majority decision in Grutter also noted that there would likely come a time—they suggested a period of 25 years—when racial considerations in admissions would no longer be necessary. The Gratz decision emanated from the same touchstone of “narrow tailoring.” In that case, the Court struck down Michigan’s undergrad admissions practice of awarding a set number of “points” towards candidates from underrepresented groups. The majority of justices considered this policy to be too broad. Fisher 1 and Fisher 2 affirmed that considering race in admissions was permissible as long as it was narrowly tailored (and, in this case, was only considered after students met certain rank-in-class thresholds in their high school graduating classes) and that it could only be used if the school had explored race-neutral alternatives to enrolling a diverse class and found them insufficient. The throughline between these cases is a continual refinement of what affirmative action could look like. Per Bakke and Gratz, it couldn’t be blanket policies in the form of quotas or adding points to a file due only to race. Per Grutter and the Fisher cases, race could only be used narrowly after considering other measures to enroll a diverse class.

To that end, one can look at SFFA v. Harvard and see a further narrowing of scope. The majority—rather clearly and bluntly—held that affirmative action in higher ed admissions violates the Equal Protection Clause of the Fourteenth Amendment. One could argue that you can’t get much narrower than “violates the Fourteenth Amendment.” However, Chief Justice Roberts’s opinion offered the following note on the eighth page of the decision’s syllabus: “At the same time, 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.” And that one single sentence is likely going to be the guiding light for AdComms as they figure out what to do next.

The most immediate changes that students are likely to see on this year’s applications are in the demographic questions and in supplemental statements. Regarding the former, AdComms will likely follow the lead of their colleagues at law schools in California and Michigan. Affirmative action in college admissions is prohibited in both states via voter-enacted propositions. Law schools there have continued to ask about a student’s race on their application forms. This is because the schools eventually have to report information regarding the racial composition of their student body to both the Department of Education and the American Bar Association. However—and we’re going to put this in bold so that there is no confusion—this information is suppressed when the application is presented to admissions readers. They do not see any information regarding a student’s race. All they see is “answer suppressed.” This prevents admissions readers from making blanket assumptions about a student based solely on the box they checked for questions of their race. Since all schools build their applications on LSAC’s platform and because LSAC already has had to provide suppression tools for schools in the aforementioned states, it will be easy enough for every other school to suppress racial information about applicants during the evaluation process.

Schools in those states also tend to ask far more questions about a student’s background. It is common to see questions about:

  • The high school the student attended, including drop-out and graduation rates.
  • Whether the student worked during college and—if so—how many hours per week.
  • If they had responsibilities for raising other family members.
  • If they were raised in a single-parent household.
  • Their native language and—if it is not English—when they learned English.
  • If they are the first in their family to attend college and/or law school.

Students should be prepared to see those questions pop up on other law school applications in the next year or two.

And let’s now come back to Chief Justice Roberts’s words that AdComms can consider “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.” Perhaps the Chief Justice has been moonlighting as a law school AdComm because that sounds like the prompt for a Diversity Statement. Many Diversity Statement prompts have been open-ended in the past and have generally mentioned race as a possible area of consideration. A quick scan of the application requirements page on our website will yield many examples of this kind of basic prompt but we’ll pick on Penn Law as a good exemplar:

“Describe how your background or experiences will enhance the diversity of the Penn Carey Law community (e.g., based on your culture, race, ethnicity, religion, sexual orientation, gender identity, ideology, age, socioeconomic status, academic background, employment, or personal experience).”

Michigan Law, meanwhile, has offered more targeted supplemental prompts in the past that approach a Diversity Statement from many different angles. They have already published their updated supplemental prompts for this year, and we can see both a continuation of some themes as well as some new language that—perhaps—will be more in line with the Chief Justice’s suggestions (e.g., “How has the world you came from positively shaped who you are today?”). It’s entirely likely that other admissions offices will offer similarly targeted language for their supplemental statements. If you are planning to include a Diversity Statement for your applications this year and want to get started on drafting, you may want to begin with Michigan’s prompts and then keep an eye out for other schools to publish their instructions in due course.

And speaking of “due course,” these kinds of changes may take some time for AdComms to process. While they knew this decision was coming and had a good sense of how the justices would rule, they had to wait for the decision before proceeding onward. They now need to partner with both their General Counsel’s office (to ensure that questions and language best comply with their in-house interpretation of the Supreme Court’s decision) as well as LSAC (to ensure that applications function in the proper manner, i.e., that information that should be suppressed is actually suppressed) to update their applications for the coming year. As such, it is possible that applications may get published a touch later than usual. We are certainly keeping our ears open and are gently prodding our friends in admissions offices to let us know if this may happen.

In the meantime, we all continue to square the heart of the SFFA decision with the idealized essence of the 4th of July—the celebration that all men are created equal and that they are endowed by their creator with certain unalienable rights, including life, liberty, and the pursuit of happiness. As future law students, much of your education will explore the tensions between America’s foundational documents, the case law that has developed over the centuries based on interpretations of those documents, and the reality of the present day. You won’t be alone in that journey—your classmates and faculty will be there to explore those ideas in a Socratic context that necessitates and makes essential the democratic ideals of diversity and engagement. Trust that AdComms are also doing their best to figure out this new landscape and to ensure that that idealized classroom environment becomes reality when you arrive for orientation next August.