A warning to colleges from the head of Students for Fair Admissions

Edward Blum, who leads Students for Fair Admissions, was the driving force behind the Supreme Court’s long-overdue rejection of racial preferences in college admissions. With that decision, the battle shifted from getting the law right to getting colleges to comply with the law. The latter task might be as difficult as the former was.

To advance the latter task — compliance — Edward sent a letter to 150 public and private colleges and universities discussing the Supreme Court’s ruling and advising these institutions on what they must do to comply.

Here is the text of the letter:

July 12, 2023

I write on behalf of Students for Fair Admissions, a non-profit organization of more than 20,000 members dedicated to eliminating the use of race in college admissions. For nearly a decade, SFFA has united Americans of varying backgrounds to accomplish their goal of eliminating racial preferences—a goal that public polling consistently confirms is shared by large majorities of all Americans.

As you are no doubt aware, the Supreme Court’s recent decision in Students for Fair Admissions v. President and Fellows of Harvard College, No. 20-1199, ended the legality of racial preferences in college admissions. Among other things, the Court explained that:

·       Colleges’ assertion that racial preferences can achieve educational benefits are “not sufficiently coherent” to survive strict scrutiny. Slip Op. at 23.

·       No system can rely even in part on the traditional racial “categories,” which are “imprecise,” “overbroad,” underinclusive,” and “opaque.” Id. at 25.

·       Because race can never be a “negative,” it can never be a positive in admissions. Id. at 27. College admissions are “zero-sum” and thus “[a] benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.”

·       Any program that includes race as a factor unconstitutionally tolerates “stereotyping,” which “can only cause continued hurt and injury, contrary as it is to the core purpose of the Equal Protection Clause.” Id. at 29-30 (cleaned up).

·       Racial preferences cannot continue indefinitely. And any attempt to use race until a particular ethnic balance is achieved “turns” the equal-protection guarantee “on its head.” Id. at 31-32 (cleaned up).

·       And critically, our law is “‘color-blind.’”Id. at 39. What some used to dismiss as “‘rhetorical flourishes about colorblindness’” are actually the “proud pronouncements” of the Court’s cases. Id. at 36.

It is therefore incumbent upon your institution to ensure compliance with this decision, starting with the upcoming admissions cycle. At the very least, you should take the following steps to avoid violating the Constitution, Title VI of the Civil Rights Act of 1964, and other similar laws.

·       Cease making available to admissions officers “check box” data about the race of applicants. The College Board recently introduced a feature for the Common App that makes this easy. See Common App and Equitable Admissions, perma.cc/3WMD-DGUF (archived July 6, 2023) (noting that “[m]ember colleges are able to hide (that is, ‘suppress’) the self-disclosed race and ethnicity information from application PDF files for both first-year and transfer applications”).

·       During the admissions cycle, prohibit your admissions office from preparing or reviewing any aggregated data (i.e., data involving two or more applicants) regarding race or ethnicity.

·       Eliminate any definition or guidance regarding “underrepresented’ racial groups.

·       Promulgate new admissions guidelines that make clear race is not to be a factor in the admission or denial of admission to any applicant. This includes clear instructions that essay answers, personal statements, or other parts of an application cannot be used to ascertain or provide a benefit based on the applicant’s race. For “what cannot be done directly cannot be done indirectly,” and an applicant “must be treated based on his or her experiences as an individual—not on the basis of race.” Slip op. at 39-40 (cleaned up).

“Eliminating racial discrimination means eliminating all of it.” Id. at 15. We trust that your institution will take immediate steps to eliminate the use of race as a factor in admissions, will be open and transparent about those steps, and will reaffirm your commitment to the equal treatment of all applicants, regardless of their skin color. 

The reaction by the college education establishment has been less than welcoming. Inside Higher Ed summarizes it here.

David Hawkins, chief education and policy officer of the National Association for College Admission Counseling, sniffed:

Colleges and universities will not need to rely on [Blum’s organization] for legal guidance in the recent Supreme Court ruling. Institutions are well-equipped to interpret the law with their own legal counsel and governance structures.

Colleges and universities should, of course, consult their own lawyers. But Edward provided citations for every proposition of law he extracted from the Court’s opinion. His list of what it’s “incumbent” on institutions to do to comply flows from what the Court said, and includes some citations to the opinion.

If counsel provides a college or university with advice that’s inconsistent with Edward’s letter, the client should press hard to ascertain the portions of the Court’s opinion that support that advice.

In reality, it seems clear that colleges and universities will be pressing their counsel for advice that contradicts Edward’s. Counsel should put the law, as set forth by the Court, ahead of their clients’ desire to keep discriminating on the basis of race. And they should avoid wishful thinking.

Speaking of wishful thinking, a Rutgers law professor told the Wall Street Journal, “I think that there are still lots of options available [for keeping black enrollment up] . Colleges and universities should continue to employ those strategies to the fullest extent possible.” There are not lots of lawful options available for maintaining present levels of black representation on campus, although there’s some wiggle room.

We can expect plenty of wiggling. I assume that’s why Edward wrote his letter.

Much of the pushback against the letter has been lame. For example, Peter McDonough, vice president and general counsel of the American Council on Education, noted that Chief Justice majority opinion “recognized, as it must, that universities may define their missions as they see fit.’”

Universities can define their missions any way they want. But they can’t violate the law to achieve a mission.

McDonough added, “Nothing precludes schools from continuing to embrace their informed sense that commitments to equity and inclusion, and the educational value of a diverse learning environment, are as critical to their missions today as they were before the Court ruled.”

But whatever colleges and universities believe about the educational value of “a diverse learning environment,” the law no longer accepts that view as a lawful basis for preferring members of some racial and ethnic groups over members of others.

Finally, McDonough said, “Nothing precludes schools from continuing to lean into their crucial roles for this country as engines of social mobility.” This statement is darkly humorous.

Think of the large number of Asian-Americans of lower economic status (including the offspring of recent immigrants) who sought “social mobility” via admission to colleges like Harvard only to be rejected in favor of blacks, many from the middle class, based on racial stereotyping of Asians.

Colleges and universities remain free to consider economic class in making admissions decisions. However, they cannot use this as a subterfuge for preferring members of one race over members of another.

As Edward’s letter says, quoting the Supreme Court’s decision, “what cannot be done directly cannot be done indirectly.” If institutions like Harvard keep generating the same racial enrollment percentages they’ve maintained for years using new, less direct means of accomplishing this, it should be clear that these institutions are violating the Court’s commands.

And Edward’s group, Students for Fair Admissions, will be there to call them out.