Ethical College Admissions: A Very Disappointing Decision

I spent most of last week reading the Supreme Court decisions in SFFA v. Harvard and UNC Chapel Hill. It’s 237 pages long, and if you are looking for an entertaining and uplifting beach read, look elsewhere.

There has already been plenty of commentary, perhaps too much, on the decisions. That, of course, will not stop me from weighing in. I have joked before that “it takes a lot to render me speechless, and unfortunately for all of you, this is not one of those times.” This is definitely not one of those times.

I have written about the issues surrounding the treatment of Asian American applicants to Harvard numerous times since 2015, not long after the Students for Fair Admissions complaint was filed in federal district court. That spring I was interviewed for NPR’s All Things Considered on the “landscape” of college admissions. It was a couple of days after a coalition of 64 groups filed a complaint with the U.S. Department of Education’s Office of Civil Rights alleging that Harvard discriminated against Asian American applicants, and most of the interview with host Arun Rath focused on that issue.

I am trying to separate my reactions to the decision from my concerns about the Supreme Court. At his confirmation hearing back in 2005, Chief Justice John Roberts stated, “My job is to call balls and strikes and not to pitch or bat.” That view seems quaint looking at today’s court, which sees nothing wrong with changing the strike zone or even the rules of the game. I’m not sure which bothers me more, a court that has no problem abandoning 50 years of judicial precedent and settled law, or individual justices who believe that abiding by a code of ethics is beneath them. Is believing that the billionaires who lavish attention and gifts are friends who expect nothing in return evidence of naïveté or evidence of hubris?

The opinion, authored by Roberts, is most certainly a shot across the bow of higher education, but I am far from convinced that it will have the far-reaching impact that many commentators assume. There are three reasons.

First, the ruling impacts a relatively small number of colleges. There are fewer than 200 colleges and universities selective enough that admission is, to use the court’s term, “zero-sum,” where admitting one student means denying someone else. The ruling doesn’t apply to the vast majority of colleges concerned only about enrolling enough students to make the budget. It affects name colleges, and as always, media attention on college admission focuses only on name colleges. That’s a rant for another time.

Second, most of the institutions impacted by the ruling have already reaffirmed their commitment to diversity and access, as they should. On that subject, Senator J. D. Vance’s comparison of those declarations by the Ivies and Vance’s home-state colleges like Kenyon and Oberlin Colleges to the Massive Resistance following Brown v. Board of Education would be laughable if it weren’t so tone-deaf and offensive.

The court decision is not about diversity as a goal (although DEI in all forms is clearly under attack on multiple fronts), but rather about the means to achieve the goal. Does a desirable end justify a less than perfect means? That is an old question in ethics, and in this case the court has said no.

The reality is that colleges have other tools at their disposal in seeking and identifying diversity. Tools such as the College Board’s Landscape program provide demographic context on applicants’ high schools and ZIP codes, and a New York Times article last week reported on the Socioeconomic Disadvantage Scale (SED) being used by the medical school at the University of California, Davis (the defendant in the 1978 Bakke case). Application essay prompts inviting students to write about their “personal identities” have proliferated in the last few years.

Most importantly, Roberts’s opinion does not outlaw all consideration of race in the admissions process. He explicitly states at the very end of the opinion that “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life.” Admission decisions are about context, and race is certainly part of the context for an individual applicant.

So how, then, should the opinion be construed? As I read the decision, it is really concerned with the consideration of race within the context of two widespread selective admission practices. One is holistic admission, which the court seems to see as a shroud giving colleges license to admit whomever they want, with different students admitted for different reasons—academic accomplishment in one case, athletic talent in another, diversity in another.

Even more problematic is another common selective admission practice, admitting not individuals but rather shaping a class. Roberts talks about Harvard’s “lop” process, the final step in its process, whereby tentative admits are culled to shape the final class. At that stage Harvard admitted that it is aware of the composition of the class in terms of race, legacy, athletes and financial aid status. The Supreme Court concludes that race is determinative during the lop process for a significant percentage of admitted African American and Hispanic applicants.

That is not a new concern. As far back as the Bakke case, the court stated that race could be considered as one among many factors in an individual admissions decision, and Justice Lewis Powell cited Harvard’s admissions process as an exemplar of that process. In a separate opinion in that case, Justice Harry Blackmun wondered whether the Harvard plan was merely a covert way of accomplishing the quota that the University of California, Davis, law school was using openly, and during oral arguments in the current case, Justice Samuel Alito asked if Harvard had sold Powell “a bill of goods.” While the recent decision is primarily about racial preferences, there is a larger issue for admissions offices to consider. Is admitting and shaping a class rather than admitting individuals an appropriate practice?

There is an irony here. The Supreme Court is essentially accusing Harvard and other selective colleges of reverse engineering the admissions process to achieve racial balancing, and yet one of the criticisms of the current conservative majority on the court is that they also engage in reverse engineering, starting with the political result they want to achieve and then finding the legal precedents and interpretations that justify their position.

If racial preferences are now in jeopardy, the court ruling may also be a death knell for several other kinds of preferences. There has already been discussion of legacy preferences, but what about athletic preferences for sports that are largely played by athletes who are white and affluent, like squash, water polo, fencing, ice hockey, golf, sailing and lacrosse? Race-based admission is an attempt to address America’s historical racial inequities, whereas both legacy and athletic preferences serve to preserve privilege. Of the two, race-based admission is far more defensible. I’m sure Students for Fair Admissions will be challenging those preferences any day now, but forgive me if I don’t hold my breath.

The other admission practice that needs to come under scrutiny, perhaps even strict scrutiny, as a result of this case is the practice of assigning students a personal rating. One of the troubling revelations from the Harvard case was that Asian Americans received lower personal ratings than other groups. I don’t want to believe that was evidence of discrimination, but it didn’t make Harvard look good.

A student’s personal qualities should be part of a holistic evaluation, but qualities like leadership, integrity, grit, sense of humor, compassion, kindness and helpfulness are hard to measure. If those are soft skills, trying to rate them is even softer, perhaps even arbitrary and subject to implicit bias.

In the wake of the Supreme Court decision, it is important to keep our eyes on the prize. Promoting equity and access to education remain an essential goal, even if how we pursue them has to change.