The demands of Students for Fair Admissions

How soon should colleges change their policies in the wake of the recent Supreme Court ruling that affirmative action in college admissions is illegal?

Students for Fair Admissions, the group that filed the lawsuits against Harvard University and the University of North Carolina that led to the Supreme Court decisions, sent an email Tuesday night to 150 colleges and universities, containing a series of demands.

Students for Fair Admissions said that the colleges contacted were public and private, but it did not make the list of colleges public.

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Several higher education associations questioned parts of the email and strongly urged colleges to rely on their own legal advice, not that of Edward Blum, president of Students for Fair Admissions. The email was sent to presidents, deans of admissions and general counsels.

The email outlined the group’s view of the decision and said the court ruled that:

• “Colleges’ assertion that racial preferences can achieve educational benefits are ‘not sufficiently coherent’ to survive strict scrutiny.
• “No system can rely even in part on the traditional racial ‘categories,’ which are ‘imprecise,’ ‘overbroad,’ ‘underinclusive,’ and ‘opaque.’
• “Because race can never be a ‘negative,’ it can never be a positive in admissions. 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.’
• “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.’
• “And critically, our law is ‘color-blind.’ What some used to dismiss as ‘rhetorical flourishes about colorblindness’ are actually the ‘proud pronouncements’ of the court’s cases.”

The email also advised the colleges that it was “incumbent upon your institution to ensure compliance with this decision.”

• “Cease making available to admissions officers ‘check box’ data about the race of applicants.
• “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.’”

Reactions to the Letter

Leaders of several higher education associations criticized the letter and said it was misleading.

“I’m struck, but not surprised, by what Mr. Blum’s letter doesn’t say,” said Peter McDonough, vice president and general counsel of the American Council on Education.

He noted that Chief Justice John G. Roberts Jr.’s majority opinion “recognized, as it must, that ‘Universities may define their missions as they see fit.’” He added, “Nothing precludes schools from continuing to lean into their crucial roles for this country as engines of social mobility. Also, 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. Mr. Blum could have begun with that in his letter, but he didn’t.”

McDonough said that “obviously, colleges and universities will follow the law.” But, he said, “The decision, and what it means in each context, will be important to consider for the upcoming academic year, and beyond. Undoubtedly, every school in the country has begun to assess what the Supreme Court’s decision means for it. Facts matter a lot, and the nature and extent of how a particular institution may need to adjust what it does will vary.”

David Hawkins, chief education and policy officer of the National Association for College Admission Counseling, said colleges should not trust Students for Fair Admissions’ interpretation of the court’s ruling.

“Colleges and universities will not need to rely on SFFA 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,” Hawkins said.

Shirley J. Wilcher, executive director of the American Association for Access, Equity and Diversity, agreed.

“There is a difference between what Ed Blum is writing to the colleges and what the court actually said,” she said.

Wilcher said Blum’s analysis “is broader than the decision. For example, he suggests that no system can rely on the ‘traditional racial categories.’ Civil rights agencies must comply with the racial categories announced by the Office for Management and Budget.

“When he says that ‘any program that includes race as a factor unconstitutionally tolerates racial stereotyping,’ this is his opinion—this is not the court’s decision,” she said.

Wilcher also noted that “how colleges use the essay answers in an application is unclear. Blum’s interpretation of the decision is just that, his interpretation. Institutions must consult with counsel, not Ed Blum, for a credible interpretation of the decision.”

Similar Letter in Ohio

In Ohio, Attorney General Dave Yost, a Republican, has also warned colleges in a letter that they must comply with the decision, The Columbus Dispatch reported.

“I am writing to stress the need to comply strictly with the decision’s holding,” Yost wrote. “And to warn the higher education community about the dangers that institutions of higher education and institutional employees face by failing to do so.”

Yost said that using application essays or other means to discover an applicant’s race would be the sort of policy the Supreme Court struck down.