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Racial Diversity in College Admissions

July 18, 2023

At The Regulatory Review, Cara McClellan GEd’12 explains what’s left and what’s next for racial diversity in college admissions after the Supreme Court’s recent affirmative action decision.

“On the penultimate day of the 2023 term, the U.S. Supreme Court released its consolidated opinion ruling that the admissions programs used by the University of North Carolina at Chapel Hill (UNC) and Harvard College violated the Fourteenth Amendment’s Equal Protection Clause,” writes Cara McClellan GEd’12, Founding Director of the Advocacy for Racial and Civil (ARC) Justice Clinic and Practice Professor of Law. “Although the Court did not explicitly overrule Grutter v. Bollinger, it effectively overturned more than 45 years of precedent holding it constitutional for colleges and universities to consider race in a narrowly tailored manner to pursue the educational benefits that flow from diversity.”

McClellan joined Law School from her position as Assistant Counsel at the NAACP Legal Defense & Educational Fund, Inc., where her work focused on increasing education equity and ending the criminalization of Black people. She contributed to the NAACP LDF’s amicus brief in the case.

McClellan’s essay, “What’s Left and What’s Next for Racial Diversity in College Admissions“ is part of The Regulatory Review’s series of essays on the Supreme Court’s 2022-2023 Regulatory Term. The Review is the flagship publication of the Penn Program on Regulation.

From The Regulatory Review:

In what seemed like a radical position, Students for Fair Admission (SFFA) had sued Harvard and UNC alleging that any consideration of race in admissions is discriminatory, even when intended to foster racial diversity, and violates both the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. In its complaint, SFFA sought a permanent injunction requiring that the universities “conduct all admissions in a manner that does not permit those engaged in the decision process to be aware of or learn the race or ethnicity of any applicant for admission.”

The Court largely accepted SFFA’s position, holding that the universities’ race-conscious admissions programs unavoidably employed race in a negative manner for some applicants, engaged in racial stereotyping, and were not time-limited. Writing for the majority, Chief Justice John G. Roberts held that the educational benefits of a diverse student body are not sufficiently “coherent” for judicial review. The Court reasoned that UNC and Harvard failed to articulate a meaningful connection between the consideration of race and the educational benefits of a diverse student body. This is because, according to the Court, racial categories are themselves imprecise. In short, not only does the Court’s majority feel the meaning of diversity is unclear in the universities’ admission programs, but the majority also found the meaning of terms like “white,” “Asian” and “African American” to be too amorphous to factor into admissions decisions.

Nevertheless, the Court did not go so far as to issue a complete prohibition on colleges and universities considering the race of an applicant, as SFFA had requested. The majority emphasized that universities may consider an applicant’s discussion of how race affected their life when that discussion is concretely tied to a characteristic or unique ability of the applicant.

The majority opinion ignores, however, well-established social science research assessing the educational benefits of diversity… . 

Read the full piece at The Regulatory Review.