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College admissions will never be the same. The Supreme Court’s decision in the Students for Fair Admissions case to ban consideration of race in the admission process, though widely expected, has led colleges and universities throughout the country to search for new ways to attain a diverse student body. One place to look for guidance is California’s public higher education system.

Twenty-eight years ago, in 1996, California voters passed Proposition 209. This ballot measure amended the state constitution to prohibit discrimination against, or preferential treatment toward, “any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” Public colleges and universities could no longer consider race as a factor in student admissions.

In the decades since Proposition 209 took effect, California’s public higher education system has experimented with a variety of strategies to create racial diversity without considering race in the admissions process. California’s experiments with race-neutral diversity measures—and courts’ scrutiny of those approaches—provide meaningful insight into what may be permitted for colleges and universities outside California seeking to recruit a diverse student body in a post-Students for Fair Admissions landscape.

Outreach and Recruitment

Four years after Proposition 209 was approved by the voters, the California Supreme Court considered the issue of targeted outreach in a case known as Hi-Voltage. The case involved a San Jose municipal program that required contractors bidding on city projects to utilize a specified percentage of minority and women subcontractors, or to send “solicitation letters” to at least four minority and women subcontractors to determine their interest in participating in the project. The court held that the program violated Proposition 209 insofar as it required a racial quota for the participation of subcontractors or outreach directed only to minority and women subcontractors.

However, the court left open the possibility of targeted outreach to minority- and women-owned businesses as one component of broader outreach to all businesses. This kind of targeted recruitment has proliferated in the years since Proposition 209, and it is a pillar of California public universities’ efforts to achieve diversity in their student bodies and workforce. For example, a college or university may advertise a job position or educational opportunity in non-English-language media outlets or publications that are designed to reach underrepresented groups. Colleges and universities may also provide or participate in job or college fairs that draw significant participation by underrepresented groups—e.g., a college fair geared toward Black students. So long as recruitment is part of a general effort to cast a wide net and information and participation is available to all prospective applicants, targeted outreach is lawful.

Alternative Measures of Diversity

While Proposition 209 and the Students for Fair Admissions decision prohibit the direct consideration of race in admissions, California colleges and universities have created legally acceptable substitute criteria. For example, starting in 2001, the University of California System has utilized a holistic review process in admissions. It considers factors including an applicant’s income level, geographic and neighborhood circumstances, attendance at a low-performing high school, personal disadvantages the student has overcome, whether the student is the first in their family to attend college, and the impact of an applicant’s background on academic achievement.

Similar approaches outside of California are now working their way through the courts. A recent federal appellate court decision, Boston Parent Coalition for Academic Excellence, is an example. In December 2023, a court permitted Boston Public Schools to grant preference in enrollment at three selective schools to students from low-income ZIP codes. The court determined that the system was racially neutral and therefore lawful, even if the intent was to use socioeconomic status as a proxy for race.

Diversity Statements

Some California public universities have incorporated questions in applications for admissions, scholarships and other opportunities that ask the applicant how they can contribute to a diverse educational environment and/or their potential for leadership in diversity and inclusion on campus. Evaluating applicants on this basis can be race neutral, as someone can demonstrate sensitivity to diversity and leadership on this front regardless of their race or other characteristics.

The Students for Fair Admissions majority suggested that requiring diversity statements can be lawful, writing 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, be it through discrimination, inspiration, or otherwise.” However, the court warned in the same paragraph that “universities may not simply establish through application essays or other means the regime we hold unlawful today.” That is, universities cannot use diversity statements to hunt for clues about an applicant’s race and factor it into the admissions decision; instead, they must evaluate the applicant based on their individual experiences.

Data Collection

California courts have taken care to point out that nothing in Proposition 209 prohibits a public college or university from collecting data related to the racial composition of its student body or workforce.

In 2001, a California appellate court approved of data collection regarding the participation of racial minorities in public education programs. The court reasoned in Connerly v. State Personnel Board that “accurate and up-to-date information is the sine qua non of intelligent, appropriate legislative and administrative action.” What is not lawful under Proposition 209, according to the court, is establishing numerical “participation goals” that seek proportionality to the demographics of the broader population in enrollment. The same may be true nationally after Students for Fair Admissions.

Data is integral to successful diversity efforts for a couple of reasons. Demographic data about applicants, enrollees, scholarship recipients and others can reveal where college and university programs are falling short in terms of recruiting underrepresented students. Data can therefore illuminate the areas where institutions must direct greater efforts to boost diversity.

Relatedly, data is instrumental to gauging the effectiveness of diversity measures that are already in place. One example is the University of California System’s efforts to track how its recent decision to stop considering standardized tests in admission decisions—a move motivated partially by concerns that the tests are an inequitable measure of underrepresented minority students’ achievement—is impacting the racial composition of students who apply to and enroll in UC institutions.

Colleges and universities should be mindful to collect information about race and other protected characteristics separately from an application. It is the safest way to minimize the risk of a claim that race factored into an admissions decision.

Other Strategies

There are other methods for creating a diverse student body that California’s public universities have cultivated since 1996, which have not been tested in the courts. For example, the UC system’s Eligibility in the Local Context program guarantees a spot at one of the University of California campuses to the top 9 percent of the graduating class in each participating California high school, assuming other admission criteria are met. Many California colleges and universities also eschew reliance on letters of recommendation, demonstrated interest and legacy, all of which have the potential to disadvantage students from underrepresented backgrounds.

Though California has served as an incubator for creating new ways to attain student diversity through the admissions process without consideration of race, the results over more than a quarter of a century are not encouraging. As the University of California System recently acknowledged in its amicus brief to the Supreme Court in Students for Fair Admissions, it has failed to restore enrollment of Black and Native American students to pre–Proposition 209 levels; the proportion of Latino students enrolled (25.45 percent in 2019) is less than half their share of California high school graduates (52.3 percent). Disparities remain particularly stark at the flagship Berkeley and Los Angeles campuses.

Yet, as Justice Sonia Sotomayor wrote in her dissent to Students for Fair Admissions, “The pursuit of racial diversity will go on. Although the court has stripped out almost all uses of race in college admissions, universities can and should continue to use all available tools to meet society’s needs for diversity in education.” Colleges and universities across the country—and their attorneys—will continue their efforts to find creative, effective and lawful avenues to attain a more diverse student body.

Michael Blacher is the chair of Liebert Cassidy Whitmore’s (LCW) private education practice group. He represents educational institutions in all aspects of labor, employment and education law. Gabriella Kamran is an attorney at LCW specializing in labor and employment matters for private education clients.

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