Analysis of Admissions Policy Changes at Yale
On June 29, 2023, the U.S Supreme Court in Students for Fair Admissions (“SFFA”) v. President and Fellow of Harvard; SFFA v. University of North Carolina (“UNC”) effectively prohibited the consideration of an applicant’s racial status as a factor in admissions. Although the court made clear that direct consideration of an applicant’s race as an admission factor was no longer permitted, Justice Roberts, writing for the majority, did not require universities to become completely race-blind as “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,” tied, for example, to the student’s “courage and determination” or “unique ability to contribute to the university.” The immediate ramifications of the decision on admissions policies – and indirectly on financial aid/scholarships, pipeline programs, and outreach/recruitment, which the Court did not address), has generated vigorous legal debate within the halls of American higher education institutions.
On September 7, 2023, Yale University, which was not a party to the litigation, settled a separate lawsuit in which SFFA challenged Yale’s admissions policies. The Joint Stipulation of Voluntary Dismissal stated that Yale “updated its training materials to make clear that race may not be used as a factor in making admissions decisions,” blocked “check-box racial data” from any person involved in making admissions decisions during the admissions review cycle and “will not run any reports . . . provid[ing] aggregate data with regard to the racial composition of admitted students.” The removal of access to the “check box racial data” harkened back to Justice Roberts’ foreshadowing of the court’s decision in oral argument when he stated:
[If the practice of checking the box is taken away,] maybe there will be an incentive for the university to, in fact, truly pursue race-neutral alternatives, such as, you know, allowing…applicants to indicate experiences they have had because of their race.
Yale’s decision to go beyond the explicit holding of the court and eliminate the ability of admissions staff to access an applicant’s race or run any reports with aggregate racial data before the admissions process is completed reflects practical risk mitigation steps that – in conjunction with the court’s ban on considering racial status in admissions – potentially lessens the chance that Yale, and institutions with similar policies, become immediate litigation targets on the issue of racial status in admissions. For those institutions that choose to not follow Yale’s lead, will mere access to an applicant’s racial status during the admissions process lead to a de facto presumption – rebuttable as it may be – that those institutions are potentially violating the court’s ban against using racial status as a factor in admissions? At a minimum, institutions that do not shield racial data from admissions staff, and in particular selective institutions like Yale, should consider implementing training and verifiable safeguards to preclude them from crediting an applicant’s race impermissibly, or the appearance thereof.
Consistent with the court’s guidance, universities nationwide are also focused on race-neutral admissions practices. In the immediate aftermath of the Yale-SFFA settlement, Yale shared its updated admissions process, which included new essay questions encouraging applicants to reflect on how membership in a particular community has been meaningful or how an element of their personal experience will enrich the university. The proliferation of new essay questions by institutions across the country post-SFFA raises a practical question: will Yale’s decision to shield racial data from its admissions staff insulate the institution from future criticism that its new essay questions are proxies or substitutes to facilitate impermissible race-based considerations? Because the court’s decision cautioned that “universities may not simply establish through application essays or other means the regime [the court] holds unlawful today,” institutions should anticipate that new essay questions will be scrutinized – especially if the percentage of admitted underrepresented minorities remains unchanged from the pre-SFFA era.
To that end, Yale’s updated “whole person review” admissions process includes the use of race neutral tools like Opportunity Atlas, the College Board’s Landscape program, and enhanced outreach and pipeline programming. It is critical that all institutions, regardless of whether they choose to shield data or include new essay questions, devote meaningful resources to outreach, recruiting, and pipeline/pathway programming to continue to enroll diverse campus communities in a legally compliant manner.
Kapil Longani is Senior Vice Chancellor for Legal Affairs & General Counsel for the State University of New York (SUNY) System comprised of 64 campuses across New York State. Mr. Longani holds an undergraduate degree from Cornell University and legal degrees from the University of Florida, Yale University, and Oxford University.