Universities still ask applicants about their race after ruling against affirmative action

Image: Columbia University

“Many universities are explicitly asking applicants to discuss their race, even after the Supreme Court ruled against the use of affirmative action in college admissions,” notes Campus Reform.

Chief Justice John Roberts wrote in the Supreme Court’s 6-to-3 ruling in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College that colleges can still consider how racial identity has affected applicants’ lives, “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.”

“Many universities have for too long wrongly concluded that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned, but the color of their skin,” said his ruling. “This Nation’s constitutional history does not tolerate that choice.”

In an ideologically-tinged response to the Supreme Court’s decision, Sarah Lawrence College asks applicants how the Supreme Court’s ruling on affirmative action has challenged students from reaching their goals for a college education: “Drawing upon examples from your life, a quality of your character, and/or a unique ability you possess, describe how you believe your goals for a college education might be impacted, influenced, or affected by the Court’s decision,” instructs the progressive liberal arts college in New York state, to its applicants for admission.

Stanford has updated its third admissions essay prompt, notes Steve McGuire. Now it instructs applicants, “Please describe what aspects of your life experiences, interests and character would help you make a distinctive contribution as an undergraduate to Stanford University.”

Rice University in Texas continues to ask applicants about their “racial identity.” It asks, “Rice is strengthened by its diverse community of learning and discovery that produces leaders and change agents across the spectrum of human endeavor. What perspectives shaped by your background, experiences, upbringing, and/or racial identity inspire you to join our community of change agents at Rice?”

Johns Hopkins University asks how race may have shaped who the applicant is as a person and how that impacts what they will do if they enroll at Johns Hopkins. “Tell us about an aspect of your identity (e.g. race, gender, sexuality, religion, community, etc.) or a life experience that has shaped you as an individual and how that influenced what you’d like to pursue in college at Hopkins. This can be a future goal or experience that is either academic, extracurricular, or social.”

After the Supreme Court’s decision, Columbia University Law School said on its website that it would require all applicants to submit a 90-second “video statement,” then backtracked after the Washington Free Beacon asked for comment. A representative from the law school told the publication it had been a “misunderstanding,” and then scrubbed the language from its website.

Other schools are prompting applicants to discuss their race without using the word race.  For example, the University of Richmond asks how students will contribute to the community in ways that are not mentioned elsewhere in their application. Dartmouth College asks, “How has difference been a part of your life, and how have you embraced it as part of your identity and outlook?”

Many colleges are also eliminating legacy preferences in admissions, because they are perceived as benefiting wealthy white applicants. The state of Colorado has banned public colleges and universities from giving a preference to children or relatives of alumni. On July 3, progressive black and Hispanic groups filed a civil-rights complaint against Harvard University over the preference it has given to relatives of alumni. According to their complaint, legacy preferences “systematically disadvantage students of color, including Black, Latinx, and Asian Americans” in violation of an Education Department “disparate impact” regulation.

Racially “disparate impact” does not violate the law against racial discrimination by schools (Title VI of the Civil Rights Act), which only bans “intentional discrimination” based on race, according to the Supreme Court, not “disparate impact.” But the Education Department’s Office for Civil Rights says disparate impact can violate an Education Department regulation designed to implement Title VI (34 CFR § 100.3(b)(2)). Under that regulation, the Office for Civil Rights says that a colorblind policy can be found racially discriminatory even absent any racist intent by a school, if it excludes significantly more minorities than whites, and is not “necessary to meet an important educational goal,” or if “there is a comparably effective alternative policy that would meet the schools’ stated educational goal with less of a burden of adverse impact on the disproportionately affected racial group.” Many people think legacy preferences are not necessary to meet an important educational goal.

This disparate-impact regulation may be invalid, as the Supreme Court hinted in its decision in Alexander v. Sandoval, 532 U.S. 275, 286 n.6 (2001). The Supreme Court ruled in that case that Title VI only bans “intentional discrimination,” not disparate impact, and it called the government’s defense of federal Title VI disparate regulations “strange” in footnote 6 of its ruling. As the Supreme Court explained, “We cannot help observing, however, how strange it is to say that disparate-impact regulations” are valid applications of Title VI, when Title VI “permits the very behavior that the regulations forbid…..’If, as five Members of the Court concluded in Bakke, the purpose of Title VI is to proscribe only purposeful discrimination … , regulations that would proscribe conduct by the recipient having only a discriminatory effect … do not simply “further” the purpose of Title VI; they go well beyond that purpose.’”

But the Education Department has not dismissed the “disparate impact” complaint against Harvard, and could conceivably find that its legacy preferences violate the Education Department’s Title VI regulation.

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