Biden Administration’s Push To Preserve Racial Diversity in College Admissions Could Invite Legal Trouble

With the approach of the first college admissions cycle since the Supreme Court banned affirmative action, the White House, which made no secret of its displeasure with the ruling, is pressuring colleges and universities to find ways in spite of the high court to maintain racial diversity. Yet analysts say that higher education officials seeking to continue admissions-as-usual risk infringing upon the law.In its effort to legally circumvent the court ruling, the justice and education departments recently called on schools to ask student applicants to include certain admissions essays and letters of recommendation that would enable administrators to consider race in the context of applicants’ individual lives.“It is not as important what questions get asked on the essay or how the universities gather information on the applicants,” a professor of law at the University of California at Berkeley, John Yoo, said. “What’s important is: How do the schools use that information?”If schools invite applicants to discuss their race and maintain the same racial proportions in the student body as before the high court ruling, they will likely invite legal probing, Mr. Yoo speculates. “The courts are going to scrutinize that closely to see if there’s still ongoing racial discrimination,” he said. “I don’t think the courts are going to be deceived by some essay questions.” The global lead for consulting at the American Association of Collegiate Registrars and Admissions Officers, Jill Orcutt, recommends that schools work in collaboration with their legal counsels to abide by the court ruling while remaining committed to their educational missions.“Institutions are not prohibited from collecting and using data to inform institutional policies and procedures,” Ms. Orcutt said. “Admissions policies and procedures should align with the institution’s vision, mission, and strategic plan.”Many top universities are citing one statement from Chief Justice Roberts’s majority opinion: “Nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life.” Sarah Lawrence College will even include this line in an admissions essay prompt asking applicants about their thoughts on the importance of diversity.Yet, Chief Justice Roberts also wrote, “Universities may not simply establish through application essays or other means the regime we hold unlawful today,” quoting the Cummings v. Missouri case from 1867: “[W]hat cannot be done directly cannot be done indirectly.” The Biden administration called on higher education officials “to give serious consideration to the adversities students have overcome,” including their financial means, hometown, and prior schooling, as well as “personal experiences of hardship or discrimination, including racial discrimination.” The guidance also encouraged schools to redouble recruitment efforts in underserved communities and rethink admissions policies that favor well-connected and legacy students, in order “to achieve a student body that is diverse across a range of factors, including race and ethnicity.”Schools using proxies for race in admissions might face lawsuits filed by rejected applicants claiming their constitutional right to have their applications considered without regard to race, as was the case in the successful litigation against Harvard University and the University of North Carolina.The heightened attention on America’s top schools will test their commitment to preserving racial diversity alongside legacy admissions, which give preference to children of alumni. Mr. Yoo foresees that if administrators are forced to choose between the two, they will pick the former, because “the ideological commitment to racial diversity is really strong at the level of bureaucrats and administrators.”Higher education institutions should proceed with caution, Mr. Yoo warns: “Maybe the best place to get legal advice, if you’re a college or university, is not from the administration that has lost in court trying to defend those preferences.”

Biden Administration’s Push To Preserve Racial Diversity in College Admissions Could Invite Legal Trouble

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