RUTHFULLY YOURS

Embracing the letter and spirit of the law, the board passed a nondiscrimination resolution in July that applies not only to admissions but to hiring and contracting as well. The resolution goes beyond race to prohibit discrimination based on “race, sex, color, ethnicity, or national origin, religion, sexual orientation, gender identity, age, disability, genetic information, or veteran status.”

UNC’s trustees were already trying to move the institution in this direction before the decision. Board member Marty Kotis began advocating a resolution forbidding discrimination in hiring and contracting in 2021. After the Supreme Court ruling, an overwhelming majority of the full board approved a more comprehensive version.

The resolution includes language from Chief Justice John Roberts’s majority opinion to specify that “the University shall not ‘establish through application essays or other means’ any regime of or encourage heuristics and/or proxies premised upon race-based preferences in hiring or admissions. If the University considers the personal experience of applicants for admission, each applicant ‘must be treated based on his or her experiences as an individual—not on the basis of race.’ ”

“This is a moment of humility,” said the board’s vice chairman, John Preyer. “For nine years, we’ve spent in the neighborhood of $35 million to lose a high-profile case. Why did we do that? Was that the right thing to do?”

Meanwhile, Harvard, UNC’s co-litigant, has looked for ways to keep discriminating, and so have many other institutions. They focus on one sentence of the court’s ruling: “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.”

Harvard responded to the decision by citing this line in isolation, suggesting it would treat it as a loophole. The university said it would comply with the law but reaffirmed its commitment to diversity, commenting, “we will determine how to preserve, consistent with the Court’s new precedent, our essential values.”

Other institutions responded similarly, indicating they would follow the law but look for ways to skirt it. Now that applications for fall 2024 are open, it is evident these schools are willing to risk further litigation by using admissions essays to continue to discriminate using race and other identity characteristics.

Harvard has made a formerly optional prompt a requirement for all applicants: “Harvard has long recognized the importance of enrolling a diverse student body. How will the life experiences that shape who you are today enable you to contribute to Harvard?”

It’s hard to read the word “diverse” in this prompt as anything other than a signal for students to mention their race or other favored identity characteristics.

Sarah Lawrence College has a new optional prompt that instructs applicants: “Drawing upon examples from your life, a quality of your character, and/or a unique ability you possess, describe how you believe your goals for a college education might be impacted, influenced or affected by the Court’s decision.”

Give the school bonus points for cheekiness, but it surely seems Sarah Lawrence is looking for applicants who fit into favored categories. Nicolaus Mills, a professor of American studies at the college, recently wrote: “Perhaps we are tempting litigation? But by using the Court’s words in an essay prompt, what I think we are really doing is showing we can act according to the letter of the law without being weighed down by the law.”

New essay prompts at Johns Hopkins University and Rice University seem designed to be tested in court. In a required assignment, Johns Hopkins instructs applicants to “Tell us about an aspect of your identity (eg. race, gender, sexuality, religion, community, etc. . . .) or a life experience that has shaped you as an individual and how that influenced what you’d like to pursue in college at Hopkins.”

Rice is fishing for the race of applicants with a new optional essay prompt, which asks, “What perspectives shaped by your background, experiences, upbringing, and/or racial identity inspire you to join our community of change agents at Rice?”

Even though the court’s opinion clearly indicates the focus should be on an individual’s resilience and agency, the application processes at some of these institutions are now even more narrowly focused on diversity and identity than before. Some schools have responded to the court’s decision by requiring all applicants to talk about diversity, whereas previously it was optional, and by removing opportunities for applicants to talk about other topics that are important to them.

Stanford University replaced a longstanding prompt—“What matters most to you, and why?”—with “Please describe what aspects of your life experiences, interests and character would help you make a distinctive contribution as an undergraduate to Stanford University.” While it doesn’t mention diversity explicitly, it creates such an opening.

Schools trying to flout the law are being supported by organizations such as the American Association of Colleges of Nursing, which plans to “work diligently to identify strategies, to ensure our student populations reflect the broad diversity of our society” and said it would offer a “webinar on how to structure a holistic admissions process and other student recruitment strategies that will not violate the new restrictions.” AACN defiantly states: “We will not let today’s Supreme Court decision stop us from creating a more diverse nursing workforce, which is essential to meeting our nation’s healthcare needs.”

While institutions have seized on one line in the Supreme Court’s majority opinion, they haven’t paid as much attention to what immediately follows: “Despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today.”

It looks as if many colleges and universities will need to be told again, and they will deserve the litigation required to tell them.