New legal battles await universities after affirmative action ruling by the US Supreme Court

The Supreme Court’s decision Thursday to ban race-conscious admissions policies will force universities to find new ways to attract a diverse student body, but experts said such efforts will likely open a new front in what they’ve It’s been a decades-long legal battle over race and college admissions.

The majority opinion, written by Chief Justice John Roberts and joined by the court’s five other conservatives, held that giving some minority applicants a boost over others based on their race violated the US Constitution.

But Roberts said college admissions officers could consider “an applicant’s discussion of how race affected their life, whether through discrimination, inspiration or otherwise,” as long as they do so on an individual basis. .

“A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination,” he wrote. “In other words, the student should be treated based on his experiences as an individual, not based on race.”

That provision could make application essays, in which students often write about formative personal experiences, even more important as colleges fight for racial diversity. But the inherent nuance of taking race into account without allowing it to be the sole basis for advantage creates a gray area that could lead to new lawsuits, experts said.

“The court made it very clear that it will not tolerate alternative or final solutions,” said Dayna Bowen Matthew, dean of the George Washington University Law School. “What we can do, according to the court, is look at whether an applicant’s race gave them ‘courage and determination,’ and that courage and determination are part of the goals of our university.”

But Brian Fitzpatrick, a Vanderbilt University law professor who opposes affirmative action, said he expected some schools to “try to get around that little paragraph,” leading to “years and years” of litigation.

Edward Blum, the founder of the group that brought the Supreme Court case on Thursday, made it clear in a statement that he would closely watch the reaction of schools.

“The law will not tolerate direct representatives of racial classifications,” Blum said. “We remain vigilant and intend to initiate litigation should the universities challenge this clear ruling.”

The court’s decision also did not explicitly prohibit schools from using racially neutral programs to enhance diversity.

In California, where voters banned affirmative action for public universities more than two decades ago, the state has spent more than half a billion dollars on alternative approaches, including the use of socioeconomic status, geographic location, and targeted recruiting at schools. with a high number of minority students.

But such programs could lead to legal challenges alleging that schools are simply using other criteria than race.

In Virginia, for example, a coalition of Asian-American parents sued a high school that eliminated the use of standardized tests and guaranteed places for top students in all area public middle schools, a change that resulted in more black students and Latinos and less Asian-Americans.

A divided appeals court rejected the parents’ claim, but many legal observers say the Supreme Court may choose to take the case.

“Some of the same groups that have been challenging race-conscious decision-making have also begun to question racially neutral measures that are clearly designed to diversify,” said Evan Caminker, a law professor at the University of Michigan.

Some employment lawyers also warned that Thursday’s decision, while focused on universities, could encourage more legal challenges to corporate diversity and inclusion programs.

Companies typically don’t adopt the kind of practices used by universities that the court cited in its decision, such as giving an applicant a “plus” solely because of their race.

But in practice, corporate programs can sometimes give the appearance of giving preferences to particular groups, and the Supreme Court ruling could fuel opposition to them, said Krissy Katzenstein, a partner at Baker McKenzie in New York who represents the employers.

“This is likely to create additional challenges for (diversity) efforts, and there is language in the decision that will be taken advantage of,” he said.

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