The Supreme Court should be cognizant of the rights the First Amendment grants to applicants to colleges and universities, and the freedoms it accords to those institutions. And the justices should honor decades of precedent and recognize the continuing value of colleges and universities using limited consideration of race and ethnicity as part of an individualized, holistic admissions review.
By doing so, the justices would properly reject calls for a so-called “race-neutral" regime made in lawsuits filed by the activist group Students for Fair Admissions (SFFA) challenging the admissions processes of Harvard University and the University of North Carolina-Chapel Hill (UNC), states an
amicus brief submitted today to the high court by ACE and 38 other higher education associations.
Indeed, the associations' brief pointedly says, “Make no mistake: SFFA's desired rule is not race-neutral." By barring institutions from considering race, the net effect would be a race-blinded mandate that withholds “the benefits of holistic review only from a subset of applicants: those for whom race or ethnicity plays a role in their life and leadership experiences or their potential campus contributions. For those students, and those students only, schools would be forced to make admissions decisions based on an incomplete and inaccurate presentation of the candidate."
A Direct Impact on Students and Institutions
The associations' brief also argues that the rulings in these cases will have a profound and direct impact on the missions and goals of numerous colleges and universities, as well as the educational experiences and outcomes of their students.
“Amici believe that a diverse student body is essential to important educational objectives of colleges and universities. Within long-settled judicial parameters, each institution should be able to use holistic admissions to comprise a student body that will advance its own particular mission," the brief states. “Careful holistic review gives each applicant individualized consideration and reduces no one to his or her race."
The associations' brief highlights an important concern that transcends the Supreme Court's review of how two of our nation's most selective institutions take into account race and ethnicity in their admissions processes. The brief emphasizes that fundamental and defining aspects of American higher education are at stake. It emphasizes institutional autonomy and academic freedom—a freedom that the brief notes is a “special concern of the First Amendment"—to select, if an institution chooses, a diverse student body via holistic admissions programs that consider an array of academic and non-academic factors. This includes information and perspectives offered by applicants who believe their racial or ethnic identity plays a role in their life experiences, leadership skills, or potential campus contribution.
“Under SFFA's desired regime, institutions could seemingly invite some—but not all—applicants to share fundamental information about their lives and experiences. Specifically, students of color would face the unenviable choice of declining to speak of their ethnicity or race or speaking and being ignored," the brief states. “Yet, students discussing socio-economic status, gender, age, disability, or experiences as veterans, musicians or first generation learners, all could speak freely. This would create a unique, distinct disadvantaging of racial and ethnic minorities and impose unique and impermissible content restrictions on expressive activity."
Sounding a concern expressed by Harvard and UNC in their briefs, and by other
amici, the associations' brief also notes that colleges and universities should not be constrained to mechanically follow only “objective" criteria, such as test scores and grade point averages, for constructing a student body. Both are insufficient for many institutions and imperfect predictors of future student outcomes, the brief stresses.
The ideological makeup of the Supreme Court in 2022 is quite different from 2016 when it last heard a challenge to admissions policies in its second review of rulings in
The University of Texas at Austin v. Fisher. Institutions that have relied for decades on the Court's blessing of limited consideration of race and ethnicity in admissions decisions are understandably concerned about an outcome in the Harvard and UNC cases that could impact their efforts to build diverse, inclusive campuses.
Statement by ACE President Ted Mitchell
ACE President Ted Mitchell notes in a statement issued today that the educational and societal importance of diverse learning environments has hardly diminished since the court's decision in
Fisher II to once again uphold the legality of race-conscious admissions.
“We are optimistic that when the justices hear oral arguments later this year they will do so bearing in mind the critical importance of enabling access and equity in the distribution of educational opportunities, not only at the most selective institutions but also across the broader spectrum of higher education," Mitchell says. “There is a lot at stake in these cases for our institutions and for millions of future college students. We hope that the justices will honor more than four decades of precedent and once again affirm the importance of diversity in college admissions."
The associations' brief concludes by asking the justices to be cognizant of “unintended consequences" as they craft and explain their rulings in these cases. It says that that "the extensive records here, including two trials, exclusively focused on the race-conscious admissions policies and programs at these two highly selective undergraduate institutions, and this Court's ruling should do the same."
Harvard and UNC both won in federal trial courts, and the decision in Harvard's favor was upheld by a federal appeals court. The UNC case was accepted for “direct review" by the court, an unusual but not unprecedented development.
Although the Supreme Court
announced earlier this year that it would consider the lawsuits together, it recently said it will separate the two cases, with each case getting a one-hour hearing at oral argument. This allows Justice Ketanji Brown Jackson, the Court's newest justice, to participate in the UNC case, while recusing herself from the case involving Harvard University, where she recently completed a term on the university's board of overseers.
Oral arguments in the cases are expected sometime this fall. Decisions are not likely to be announced until June 2023.