Racial Preferences in College Admissions Are Now Unconstitutional. What Comes Next?

Breaking down the Supreme Court's rulings on SFFA v. Harvard and SFFA v. UNC, and where higher education might go from here

Today, the Supreme Court of the United States (SCOTUS) handed down its decision on the two Students for Fair Admissions (SFFA) affirmative action cases: SFFA v. Harvard and SFFA v. UNC.

What did the court rule?

The court ruled that racial preferences in college admissions are unconstitutional. Specifically, that the admissions processes at Harvard and UNC violate the 14th Amendment’s Equal Protection Clause.

Legal Precedent

The majority opinion was written by Chief Justice Roberts. The opinion describes under what circumstances an organization would be exempt from the Equal Protection Clause, based on previous Supreme Court rulings. It outlined three criteria for compliance that prior rulings dictated:

1. Exceptions must pass “strict scrutiny” in two ways:

   1. be used to further compelling governmental interests (i.e. educational diversity)

   2. be “narrowly tailored” to do so

2. Race should never be used as a negative or stereotype

3. Racial preferences must end at some point

How Harvard and UNC have violated precedent

Chief Justice Roberts then outlined ways in which the current programs at Harvard and UNC violate legal precedent:

1. They fail strict scrutiny

   1. The “compelling interests” here (the benefits of racial diversity) are difficult-to-impossible to measure. If a party wants a Constitutional exception, it needs to ensure that its process is reviewable by courts.

   2. The way that race is applied in the admissions process is not narrowly tailored: for example, the six racial categories used are too simplistic and are arbitrary.

2. Admissions are a zero-sum game, so boosting one group of applicants because of their race by definition penalizes all other applicants not in that group.

3. Based on how the programs use race, there is no end in sight for when race would not need to be used.

What universities are still allowed to do

The ruling did not say much about how universities should change their admissions procedures. It simply said that race could still be used, but only if it is “concretely tied to a quality of character or unique ability.” In other words, universities can ask about a student’s race or infer it from their application questions, but they cannot use that information to directly or indirectly preference or penalize applicants.

The Court specifically cautioned against applying racial preferences in an indirect way. At the end of his opinion, Justice Roberts warned, “Universities may not simply establish through application essays or other means the regime we hold unlawful today.”

In short, universities are still allowed to employ holistic admissions practices, as well as recruit applicants in a race-neutral way. But everything needs to be race-neutral.

Which institutions are affected by the decision?

This decision affects all institutions of higher education in the United States that participate in Title IV federal financial aid programs.¹ Essentially, it is all postsecondary institutions at any level, but notably excludes the military service academies (Army, Navy, and Air Force) because they are funded directly from the federal budget.

Importantly, this decision affects all postsecondary levels within an institution. While the focus in this case was on undergraduate admissions, all graduate and professional degree programs are also affected.

When does the law take effect?

I didn’t see any stipulations about this in the ruling, but Justice Roberts did mention on p. 33 that “Harvard and UNC will evaluate [applicants] this fall using their race-based admissions systems.” This seems to imply there is at least a 1-year grace period before the ruling takes effect.

How will the law be enforced?

The ruling did not specify exactly how the law will be enforced. But it is reasonable to assume that it would be enforced in the same way the Equal Protection Clause is enforced in other domains: through litigation and threat of litigation.

Litigation will be able to come from multiple sources:

1. Disgruntled students who were rejected can claim unfair treatment in the admissions process.

2. Governmental entities such as the Department of Justice will also be able to bring lawsuits against non-compliant universities.

Aside from litigation, the general public will be watching the most prestigious universities to see how the admission and enrollment numbers change as a result of this ruling. In that sense, these institutions will be “audited” regularly. They will also likely “self-audit” as a way to avoid litigation concerns.

I am not enough of a law expert to know what sorts of cases have been brought against the University of California after Prop 209 was passed, but I would expect similar treatment nationwide.

How can universities be penalized?

The main penalties for not complying with today’s ruling are monetary. Non-compliant universities could lose money in the following forms:

• Litigation settlements, including damages to plaintiffs and attorney’s fees

• Termination or withholding of federal funds, including scientific research grants

• Not allowing students to receive federal financial aid or federally subsidized student loans

• Fines

• Loss of tax-exempt status

By how much should we expect racial representation to change?

Preserving the status quo but removing racial preferences

One of my papers, coauthored with Peter Arcidiacono and Josh Kinsler, predicts what the counterfactual admitted class would look like if racial preferences were eliminated at Harvard and UNC—but everything else remained the same.

Among Harvard admits, African Americans would drop by more than 70% and Hispanics by more than 50%. At UNC, the results dramatically differ by residence status, but both groups would see sizable drops with out-of-state African Americans dropping by over 87%.

A more plausible prediction

My guess is that Harvard and UNC won’t accept the reductions shown in the table above. Instead, they will likely adjust their admissions process to place less weight on the aspects that have the biggest gaps between underrepresented minorities and other groups. Likewise, they will place more weight on aspects where the gaps are smaller or nonexistent.

An extreme version of this would be for the institutions to admit students at random. This would ensure that the admitted class mirrored the application pool in terms of representation but would be undesirable in other aspects.

Another version is the test-optional and test-blind movement that has gained steam over the past several years. Racial preferences are necessary primarily because of racial gaps in academic preparation. De-emphasizing academics is a race-neutral way to increase the number of underrepresented minorities among admits.

What are universities’ likely courses of action?

Universities have a few options in front of them:

1. Ignore the ruling and continue on as if nothing happened.
   
   This is risky because of the enforcement methods and non-compliance penalties discussed above.
   

2. Comply with the ruling and accept lower representation of underrepresented groups.
   
   This may be the lowest-cost option for some (possibly most?) institutions.
   

3. Adjust the recruitment and admissions processes in an attempt to “soften the blow”
   
   This is the most likely scenario for the most selective universities. They clearly value racial diversity a great deal and have the resources and market power to work around the ruling.
   
   Much of what we know about how universities respond comes from the ban on racial preferences in California in 1996. This study showed that universities indeed down-weighted academics and that this was successful in “softening the blow.” But this study shows that there has not been a race-neutral alternative that has completely returned to the number of underrepresented minorities to their pre-1996 levels.

How are prospective students likely to respond?

Students will likely adjust their behavior in response to the ruling. They might be affected in two ways:

1. The perceived reduction in admissions chances will discourage applications from groups that were given admissions preferences.

2. Groups that were given admissions preferences will no longer be recruited as aggressively because recruitment as well as admissions needs to be race-neutral. Therefore, they will not apply in as high of numbers.

However, the second point may not be as salient if students don’t act on the recruitment materials they receive. In any case, it is difficult to envision a scenario where applications for these groups go up. However, it is nearly certain that the overall applicant pool will look much different as a result of the ruling.

Are legacy preferences now on the chopping block?

Now that racial preferences have been struck down, it is difficult to envision that preferences for legacies, donors, or faculty children will continue.

The main reason for this is that, once one direct preference gets eliminated, it is difficult for the remaining ones to persist.

Perhaps the only preferences that will be allowed in the long run are those related to socioeconomic status, since income is not a protected category.

Will this ruling encourage transparency in admissions processes?

A major problem with college admissions at the moment is that universities do not share their admissions data. This is partly because of the Gratz and Grutter cases of 2003. These cases ruled formulaic applications of racial preferences unconstitutional, which gave universities greater incentive to implement racial preferences holistically.

Will today’s ruling change any of this? It seems unlikely. As Justice Sotomayor wrote, “To be clear, today’s decision leaves intact holistic college admissions and recruitment efforts that seek to enroll diverse classes without using racial classifications.”

Universities certainly are no more likely today to share their data than they were yesterday. The potential for increased litigation may bring more data to light, but it would be unlikely to be publicly available.

Other opinions of the Justices

As an aside, it is interesting to see the variation in opinions among the justices. Besides the majority opinion, there were five other opinions, each of which emphasized different aspects of the case:

• Justice Thomas upheld the majority opinion but added that racial preferences harm both the beneficiaries (through stigma and lowered academic expectations) and the non-beneficiaries (because admissions is zero-sum).

• Justice Gorsuch argued that the majority opinion did not focus enough on Title VI. He emphasized that future courts should “correct course in their treatment of Title VI” in the same way that this ruling corrected course on the Equal Protection Clause.

• Justice Kavanaugh concurred with the majority and encouraged universities to adopt race-neutral alternatives to undo the effects of past discrimination.

• Justice Sotomayor dissented and focused on the persistence of racial inequality and injustice in America. She also defended holistic admissions and the educational benefits of racial diversity while questioning Justice Thomas’ claims about the harms of racial preferences.

• Justice Jackson dissented, arguing that “race-blind admissions … [are] unmoored from critical real-life circumstances” and that the Court should trust the judgement of educational institutions regarding what they need to thrive.

Other Links

Here is a nice summary of the trial litigation by economist Matthew Lilley, including what to expect next:

You Don’t Need Our Education – We Must Have Cohort Control

And here is the venerable Coleman Hughes on the end of racial preferences:

10 Notes on the End of Affirmative Action

1. Title IV here refers to Title IV of the Higher Education Act of 1965, not Title IV of the Civil Rights Act of 1964. Title IV is a law that allows the government to provide financial assistance to students and institutions of higher education. Title IV eligibility can be tied to compliance with Title VI of the Civil Rights Act of 1964.