Greetings, 7Sagers!
You may have heard the news that the United States Supreme Court rendered its decision today on the affirmative action case before them to decide “whether the admissions systems used by Harvard College and UNC are lawful under the Equal Protection Clause of the Fourteenth Amendment.”
Questions are already rolling in about how this ruling impacts personal statements, diversity statements, and other optional materials being prepared for submission this fall. While there is a lot to unpack from the 237 pages of opinion, concurrences, and dissents, we hope to provide you with some immediate information, which we will expand upon over the next few weeks via an update to our blog and an upcoming Dean’s Roundtable Webinar on July 27.
In consideration of your time, for those of you familiar with the case and the decision details, you can skip the Overview and Decision headings to get to sections discussing potential impacts on the current admissions cycle, future cycles, and our planned updates.
THE BRIEFEST OVERVIEW
Two separate lawsuits, one against Harvard College, and one against the University of North Carolina, were brought in lower courts by Students for Fair Admissions (SFFA) to challenge the admissions processes at these institutions, which expressly factored race into the admission considerations. The Supreme Court granted certiorari to hear the case against Harvard after bench trials in both cases found that the schools’ admissions programs were permissible under the Equal Protection Clause and the First Circuit affirmed the decision in the Harvard case.
For each of these cases, according to the majority opinion by Chief Justice Roberts, the Court considered the admissions processes and ultimately applied limitations to race-based admissions programs set forth in Grutter v. Bollinger: “Such admissions programs must comply with strict scrutiny, may never use race as a stereotype or negative, and must––at some point––end.” Ultimately, the majority determined that Harvard and UNC did not meet these burdens.
DECISION
Today, the Supreme Court found in favor of the plaintiffs, finding that Harvard College and UNC both violated the Equal Protection Clause of the Fourteenth Amendment.
In the majority opinion, Chief Justice Roberts wrote, “The Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points. We have never permitted admissions programs to work in that way, and we will not do so today.”
He went on to say, “A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race.”
Today’s decision may not apply to all higher education institutions––the majority opinion does appear to have a potential exception that may be challenged at a later date. Chief Justice Roberts included in a footnote of the majority opinion that the Court did not consider “potentially distinct interests that military academies may present” in the future, though there isn’t elaboration on why there is value in race-based admissions programs in this one instance and not in others.
IMPACT ON CURRENT APPLICANTS
As a result of today’s decision, higher education learning institutions across the country, including law schools, are now scrambling to determine how to implement changes to be compliant with this new ruling. According to communications with ten law school admissions representatives today, some are already being pulled into meetings with their senior administrations––and some with their main universities as well––to discuss the implications of today’s decision, how it applies to their own processes, and what it will take to be found compliant. Every school is going to interpret this guidance differently.
Are applicants still within this current cycle affected? While some schools may be able to implement policies immediately, having anticipated the Court’s decision, the vast majority of changes will be implemented with future application cycles in mind, beginning this fall, as other schools convene to implement policy changes.
Today, general counsel offices at universities are likely scouring the opinion and will then meet with senior administrators. Some law schools will then form committees to consider any processes where race might be a consideration. It will likely take a good amount of time for administrators to fully wrap their arms around all of the ways that this decision will impact their policies and processes, as the scope and reach of this decision are not at all clear.
IMPACT ON FUTURE CYCLES, BEGINNING WITH 2023-2024 APPLICATIONS
So what does this decision mean specifically for law schools, and how will any changes affect applicants? Moving forward, colleges and universities––across all programs, potentially with the exception of military academies––may no longer consider race as an express factor in admissions. This can result in changes to law admissions processes across several fronts (and this section is not an exhaustive list of what all of the changes could be).
First, law schools will need to limit what application information may be seen by admissions officers and committee members. This may not be a new practice for some schools, as jurisdictions like California have measures that ban the consideration of race in hiring and admissions at public institutions. There, public law school applications have responses to questions identifying race, ethnicity, gender identity, and sexual orientation suppressed so that they are not considered. Moving forward, as law schools are currently finalizing their applications for the next admissions cycle, many will employ this same method. The majority of law school applications become available in early September this year for the class entering in the fall of 2024.
You may wonder why the schools even collect that information if they can’t consider it. The American Bar Association Standard 509 requires law school transparency in data reporting that pertains to admissions, enrollment, scholarships, employment, etc. There are sections of the report that address the racial/ethnic composition of the student body, the graduates, and any students lost to attrition.
Second, when it comes to an applicant’s ability to submit materials such as personal statements, diversity statements, or other optional essays, the Court stated that “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”
Schools are unlikely to tell you that you can’t identify your background in your written materials; however, they may change some of their prompts for compliance. They may also add additional optional statements or implement additional ways to connect with candidates and learn their stories. This may be in the form of interviews or additional events.
Third, this decision may affect the way that scholarship dollars are awarded; the way that law schools recruit; the way that pre-law programs are built; the way that waitlists are administered; the way faculty, staff, alumni, and students interact with applicants; and more. These are all things likely to be on the table for consideration as law schools review their programs and processes. Anticipate this being a continuing conversation over time.
All of this being said, several law schools came together to send a message to candidates via Tiktok. Law school deans are beginning to communicate with their students and the media about today’s decision, reiterating their commitments to their university missions and goals, and assuring students that they will continue to work toward those goals within the confines of the law.
WHAT’S NEXT
You can anticipate a blog post expanding on this information by 7Sage admissions consultant Jake Baska. Additionally, join us for the next Law Admissions Dean’s Roundtable Talk on Thursday, July 27 at 8pm ET.