SFFA v. Harvard: Implications for Diversity in Higher Education and Beyond

September 19, 2023

Scholars and advocates discuss Students for Fair Admissions Inc. v. President and Fellows of Harvard College, in which the U.S. Supreme Court ruled that race-conscious admissions programs violate the Equal Protection Clause of the 14th Amendment. Dean Risa Goluboff gave opening remarks. The event was sponsored by the American Constitution Society, the Black Law Students Association and the Center for the Study of Race and Law.


RISA GOLUBOFF: Good afternoon. Good afternoon. Hi. OK, good, there we go. OK, wonderful. It is wonderful to see you all here. I'm thrilled that we have such a big turnout for this really wonderful and important panel. For those of you who don't me, I am Risa Goluboff. I am the dean of the law school, so welcome to the law school.

It is my pleasure to welcome you here for this really important discussion about the implications of the recent Supreme Court cases on higher education admissions. Before we begin, I'd like to offer a few thank yous to everyone who has made today possible. So first, thank you to the Center for the Study of Race and Law, led by Professor Kimberly Jenkins Robinson, for organizing this.

And thank you to our knowledgeable, varied, and expert panelists who are here. We are so happy to have you here. I also want to thank ACS and BALSA for co-sponsoring this event. And then all of the people in the law school who make events like this possible-- our events team, communications, building services, law IT. These don't happen without them, so thank you to all of them. And finally, thank you to all of you for joining us today.

So since the Supreme Court issued its decisions at the end of June, the effect of those decisions has been the stuff of many headlines and many articles, scholarly and popular. And it has been a major topic of discussion in admissions offices, councils offices, presidents offices at universities, and colleges across the country, as faculty, administrators, and institutional leaders have worked to remain within the bounds of the law while also continuing to build campus communities that are broadly diverse across many dimensions, and in which each member feels a sense of belonging.

Many have predicted that we are at the start of a season of litigation on affirmative action and related questions, not the end of that season, not only in higher education, but in other settings. We've already begun seeing such cases, lawsuits initiated against programs like an Atlanta-based program, the Fearless Fund, that makes small grants, along with mentoring, available to business owned by Black women. It is not a state actor, that fund, but the claim is under the portion of the Civil Rights Act of 1866 that prevents racial discrimination in private contracts.

We've also seen suits against large law firms under a similar theory, claiming that their diversity fellowships for first- and second-year law students unlawfully exclude certain applicants on the basis of their race or ethnicity. And of course, there's the case just up the road involving Thomas Jefferson High School, where the plaintiffs have asked the Supreme Court to determine whether the Fairfax County School Board engaged in impermissible racial balancing when it changed its admissions policies for the school, which is an elite public high school in Northern Virginia.

With this brief context in mind-- and I'm sure there'll be discussion of more of that and other developments-- it seems clear that students for Fair Admissions cases have significant implications across higher education and well beyond it. As both one of the aforementioned university leaders and a longtime civil rights historian and constitutional law scholar, I am so excited to hear our panelists' thoughts on these cases, and it is my delight to introduce our moderator for today's panel so that she can get us started on this terrific discussion.

Kimberly Jenkins Robinson is the Martha Lubin Karsh and Bruce A Karsh bicentennial professor of law here at the law school, as well as a professor of education at UVA's School of Education and Human Development, and a professor of law, education, and public policy at the Frank Batten School of Leadership and Public Policy. Here at the law school, Kimberly directs the Center for the Study of Race and Law, as well as the brand new Education Rights Institute, which will have its formal launch next month. And I hope to see you all there again.

She is one of the nation's leading education law experts, and she speaks, writes, and teaches regularly in areas of educational equity, school funding, education and democracy, equal opportunity, civil rights, Title IX, and federalism. She has published two edited volumes and a wide array of scholarly articles, book chapters, and editorials. Before joining us here at UVA, Kimberly was previously on the law faculties of the University of Richmond and Emory University, and has also held research roles at George Washington and Harvard Law schools.

She is a member of the American Law Institute and a senior research fellow at the Learning Policy Institute in Palo Alto. Before entering the Academy, she practiced for several years at Hogan & Hartson, now Hogan Lovells, in Washington DC, and in the Office of the General Counsel at the United States Department of Education. Kimberly is a WHO; a graduate of the University of Virginia; undergraduate, where she was an Echols scholar and recipient of the University Achievement Award; and Harvard Law School, where she was the articles editor of the Harvard Law Review, and graduated cum laude, after which she clerked for the honorable James Browning on the Ninth Circuit. I am so thankful to Kimberly for putting together this panel and thrilled to listen to the experts she has put together for it. So without further ado, I turn things over to Kimberly.

KIMBERLY JENKINS ROBINSON: All right, so thank you so much for that warm welcome, Dean Goluboff. I'm so excited to see such a full room, and I have to give a particular shout-out to my former, current, and future students. So I'm excited to see so many students here today. So we have a distinguished panel, and I cannot wait to hear their presentation. So I'm going to jump right in with introductions, and then we're going to have a session of questions that I will pose. And then we will be opening up for questions from the audience, so feel free to start writing down some thoughts of questions now.

So first, we are going to hear from David Hinojosa. He's the Director of Education Opportunities Project at the Lawyers Committee for Civil Rights Under Law. For those of you who are not familiar with it, it is one of the most prestigious civil rights organizations in the country. He's counsel for student interveners at UNC and student amici at Harvard. And I had a chance to watch his argument at the Supreme Court, so that was wonderful.

Second, we have Niyati Shah. She's director of litigation, Asian Americans Advancing Justice, and she was co-counsel with David for student amici in the Harvard University case.

Next, we have our very own Deborah Hellman. She's the Robert E Scott distinguished professor of law. She's the Palmer Weber research professor of civil liberties and human rights. And she's the director Center for Law and Philosophy, University of Virginia School of Law.

And last but not least, we have Richard Kahlenberg. He's a nonresident scholar at the Center on Education and Workforce at Georgetown University. He also was involved in the case. He was an expert witness for the Students for Fair Admissions. So we are first going to hear from David and then Richard. Then we will hear from Debbie. And then last of all Niyati.

All right, thanks so much, Kimberly, again, for inviting the Lawyers Committee and myself out here to UVA. You all have an incredibly beautiful campus out here. Maybe not the best basketball team on the East side.


But I won't say if I'm a fan of another school south of here. Just their basketball team. But it's an incredible honor to be here with you, and thank you all again, especially those of you who weren't able to get a free lunch and still stuck around for this. Greatly appreciate that, and thank you for the student associations who are also supporting and sponsoring this. And congratulations, again, to Kimberly. I hadn't seen her in person, but I did congratulate her online through the Education Rights Institute. And it's an incredible opportunity to advance equity and opportunity in our country, and you're the right person to lead it. So thanks so much, again, for that.

So I'm going to talk to you about the case, and it's not easy talking about the case because we did not prevail. Our clients did not prevail in this case. We represented a multiracial group of students, together with the North Carolina Justice Center and Bellman Colfax, who had intervened successfully into the UNC case. And then we also represented student amici, with my friend and colleague Niyati Shah and the Asian Americans Advancing Justice, AAJC, and the affiliates from California. And we represented a multiracial group of amici there.

And in that case, even though we represented amici-- normally amici are put on the sidelines. Submit a brief, if you care to, and we'll look at it maybe. But they actually allowed us to present witness testimony. So together with LDF, who represented another group of intervenors, or amici in the case, we presented eight total witnesses in that case as well. In the UNC case, we were actually able to not just present current students, former students, and alumni, as well, but also two experts who testified. So the record looked a little differently between UNC and Harvard, but I'm going to try to do a real quick run-through on the case.

So what you should is that both of these cases were filed on the same day, one against the oldest public, one against the oldest private university in the country. In fact, UNC, which I said it now, UNC is the oldest public university and was founded in 1789. And guess who it was founded to educate? The children of enslavers. That's who it was founded for.

And for nearly 200 years, all the way into the 1980s-- so we're past Brown v Board-- they continued to exclude, not en masse anymore, but they did continue to try and exclude especially Black students, but other students of color. And that's the history that we had at UNC, and how and why it felt that it was necessary to consider race, among several other factors, in its pursuit of a more diverse student body.

So a couple of things that you should know, because all the headlines and even the Supreme Court got this wrong, there's two different records in these cases. There's different claims. So there was no intentional discrimination claim against UNC on behalf of Asian-American students vis-á-vis White students, the same claim that they had at Harvard. And that's interesting because when I was presenting an argument in the Supreme Court-- and it was my first argument, too-- Justice Alito asked a question.

And he's like, well, wait a second. I'll maybe add a little bit. Maybe he said, I read your great brief. Your brief was great. But I don't see where you mention Asian-Americans. I mean, I did a search of your brief and it doesn't say Asian-Americans. I mean, how is that? And I just responded, because that question never came up in any of the moots. I only did three moots, got my butt kicked. But that question never came up. So I was like, oh, well, that actually represents the record in this case.

Because in the UNC case, there wasn't an intentional discrimination claim on behalf of Asian-American students and the record was different. But they don't know this because they've conflated the two. I mean, to their credit, they knew what decision they wanted to reach, so they were reading what they wanted to read. They interpreted certain things that they wanted to. In fact, in the UNC case-- so the Harvard trial was three weeks long. The UNC trial was two weeks long and it was during the pandemic.

And during their case-in-chief, they presented one witness-- who they thought, from UNC, was going to say that they didn't know what critical mass was and everything, but they didn't get that from the UNC witness-- and only two other witnesses, Arcidiacono, who was their economist, trying to suggest about how race was used as more than a plus factor, and Rick Kahlenberg, who had testified on behalf of SFFA, arguing that there were race-neutral alternatives that could be considered and haven't been adequately considered by UNC before it has considered race-conscious admissions.

So those are the records that we have in the cases. And then we have the decision. I didn't know this was going to go one by one, but we'll see. So the headlines got it wrong, New York Times, Washington Post. I remember talking to a Washington Post reporter like an hour after, and I tell him, you know that affirmative action wasn't overruled? Grutter wasn't overruled. Affirmative action wasn't banned across.

I was like, I've been reading all these headlines. And he's all like, oh, I'm sorry. I was one of those. And I honestly didn't that he had authored one of those pieces. But it was wrong. But the fact is that while they did not overrule Grutter, they under-ruled it. I don't whether or not you all will learn about under-ruling in law school. I didn't really learn about under-ruling, and people have different terms for this.

But what they did was they revised the strict scrutiny standard to make it so much more difficult for universities. It's almost like, oh, you want to consider race as one part of your admissions cycle? We dare you. And here's what you're going to have to meet now. So they kind say, well, we're not overruling it, but we're going to revise the framework.

So how did they do that? This is not cooperating. So first, they did what my friend Ted Shaw from University of North Carolina-- formerly LDF, a huge champion of civil rights over the years and has argued before the US Supreme Court plenty of times. But he said that Brown v Board-- that's BvBE, for those of you that may not be familiar with that-- that it was once hallowed. That's the one.

They asked Justice Coney Barrett, what do you think of Brown v Board? Oh, no, I'm not touching that. That's a great decision. It's precedent. Let's move on to other questions. And so how did they do that? I'm not going to go into some protracted, because I only have so much time and I forgot to start my timer and bring my watch here. And be careful because I've talked through many red lights. All right, six minutes.


So Brown v Board held that separate school facilities is no longer considered equal. You cannot have separate but equal, so they overrule that. So they made their arguments, suggesting that, well, that means it's colorblind. Brown v Board essentially meant that we have a colorblind Constitution. And that might make sense to some of you, but it really doesn't if you know the history of the Equal Protection Clause.

It was both an anti-subjugation piece, the history of it-- so I can even take you on on the originalist argument, for those of you that suggest that you are originalist, and you can look at the history of the education clause. You can see that when Congress was considering different versions of this-- and President Andrew Johnson, at the time, had stepped in momentarily, before being impeached later. But he said specifically that, no, this Equal Protection Clause, the language that you have, it's going to cause discrimination against White people.

Nobody was discriminating against White people in the 1860s, except other White people maybe that were discriminate against them, maybe on economics or something else. But the point is that it was not just an anti-subjugation clause, but it was an equal opportunity clause. They had been denied the opportunity to compete, the opportunity to involve themselves in so many parts of the activity.

And there were states that were passing these Black Codes. So you can do a search for "black codes," if you're not too familiar with it. But essentially, they were the Jim Crow laws before Jim Crow laws were Jim Crow laws, back in the 1800s. And they were these states, after they passed the 13th Amendment, they started enacting all these other laws to further subjugate Black people in America, whether they were freed, enslaved people, or never enslaved.

And so as you go through the Equal Protection Clause and march forward through the Brown v Board decision, the court said, no, we're not going to adopt this colorblind approach. But yet what the Supreme Court does, in its opinion in this case, is it reaches into a brief, filed by Justice Marshall when he was counsel, among other counsel on the case, and pulls out things from there, suggesting that that's how it's supposed to be interpreted. Well, that's not what the precedent is, though, right? How are you applying precedent when the precedent doesn't say. And that's how they're gutting now Brown v Board. That's how they gut the Equal Protection Clause.

So more specifically, what do they do? They said, these goals, these educational benefits of diversity, these goals about building cross-racial relationships and increasing perspectives in the classroom, aren't really measurable to us as the Justices. They were being measured by social scientists because social scientists how to measure, and that's actually in the record. But this is what they said. They also said that you can't use race as a negative.

But Justice Jackson and Justice Sotomayor were trying to educate the judges about how race-conscious admissions is not like what they experience. It's not quotas. It's not bonus points. It's not set aside admission tracks for certain people. It's just considering race as one of many factors because you often can't divorce race from the experiences and attributes that many students bring.

And I understand, for some of those White Justices, it's a little hard to understand because they're part of the majority and have been often involved with so much privilege. But they still said that race is used as a negative-- it must be used as a negative because if you can use it as a plus factor, then for other students it's a negative. But that's not even how admissions occurs. That's not even how it was shown in the record. And I'll maybe get to that a little bit more.

But it's not the zero-sum game, because who's to say that it wasn't a student who was from a rural community that got that spot? But because that person is a person of color, you just assume that that person must have got your spot, as though you were entitled to that spot. And they also said that it reinforces stereotypes, even though we had substantial student testimony in both cases talking about how race-conscious admissions and inclusivity helps expand perspectives. Because you have more people of certain races and backgrounds, you're going to have a wider spectrum of perspectives.

And then finally, there was no logical endpoint because the universities were basically saying, look, we're going to end this pretty soon and take our word for it. And they were like, no, no, no, no. We're done with that. Even though, back in Grutter, they had suggested-- Justice O'Connor had suggested-- that there would be a 25-year end line to this, and they cut it short by at least five years. So I look forward to discussing other items in the presentation. I do want to mention, very specifically, that the court does acknowledge universities, may consider an applicant's discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. And that's just a really important point that I wanted to mention. So thank you very much.

RICHARD KAHLENBERG: It is wonderful to be here with all of you to talk about this really important issue, and I'm really honored to be part of such an esteemed group of individuals on this panel. It's sometimes hard to disagree with friends, but this is one of those instances where I, as a liberal Democrat, am on the other side of an issue. And so I want to explain why I'm on that other side and why I testified in the case, and why I think this decision actually, in some ways, could be a win for working class students of all races.

So as Kimberly mentioned, I did testify in the case. My testimony was that racial diversity is very important to have on campus. And in fact, the UNC lawyer cited my testimony to that effect in the Supreme Court oral argument. Even their expert says racial diversity is really important, and I think it is. And so I want to focus on new ways to get racial diversity in the future, given this decision.

OK. So shortly after the Supreme Court decision came down, the Biden Administration had a summit to address this crisis in education. What are we going to do now, for those of us who care about racial diversity continuing to be present on campus? And Angel Pérez, who's the CEO of the National Association of College Admissions Counseling, said, don't let a crisis go to waste. And the Colorado College president, Song Richardson, said, affirmative action made us complacent. Now that tool is gone and I'm optimistic that all of us can work together to fix our broken system.

So what's the broken system? Well, it is true, as David suggested, there are many things that go into holistic admissions at elite colleges, because that's what we're talking about here, is selective colleges where they're deciding who's going to get in and what sort of preferences are going to be considered. And William Bowen, who was a strong supporter of race-based affirmative action, did a study a number of years ago of 13 elite colleges, and found out when you crunch the numbers, it is true that there are many factors that go into admissions, but some count a whole lot more than others.

And so the biggest preference goes to recruited athletes. So what this 30.2% means is that your chances of admissions are increased by 30.2 percentage points if you are a recruited athlete. So let's say you had a 30% chance of getting in on the merits. Now you have a 60.2%. You just add these numbers to your chances.

Being an underrepresented minority was the next most significant consideration. Then legacy preferences, which we've heard a lot about in the news recently. I edited a book called Affirmative Action for the Rich, which argued these legacy preferences are extremely difficult to defend and ought to go. I think especially now that the Supreme Court has ruled, that's particularly true.

So those are the big three things that count in admissions. And every university will tell you, well, we also consider the socioeconomic obstacles that students have overcome, because we think socioeconomic diversity is important. And it is technically true that they consider first generation college as a plus factor, but it's a tiny plus factor compared to the other three big factors that are used in admissions. And then being in the bottom income quartile, Bowen found, actually made no difference. It had no positive effect in admissions.

Now, this study was done a while ago, so in the Supreme Court litigation, we went through the same exercise. And this is from my expert reports. It's based on Peter Arcidiacono's analysis of the Harvard admissions plan. And the logit coefficient basically tells you the size of the preference provided. And so the bigger the number, the bigger the preference.

And at Harvard, recruited athlete was by far the most important factor. You had a big increase chance of admissions. And then like Bowen, they found pretty much the same thing, that African-Americans, legacies, children of faculty got a big preference. Hispanic students applying early provided a preference. And then at the very bottom was the consideration of socioeconomic disadvantage and first generation.

UNC, the same sort of numbers apply. These are the preferences for the out-of-state applicants because that's the much more competitive pool at UNC. And so you can see the order of preferences there. For in-state, it's similar, except legacy counts a lot less for in-state. So the pattern holds across, that race, legacy count a lot more than socioeconomic disadvantage.

And as a result, we have had, in the past, racial diversity without socioeconomic diversity. And so Harvard has had a majority of students who are students of color, which I think is a beautiful thing. I applaud them for that. They also, according to a study by Raj Chetty, had 22 times as many rich students as poor students. So they were bringing together fairly well-off students of all races, which is a big step forward from all White, but it's not genuine diversity that they were seeking.

And so 71% of the underrepresented minority students-- that is Black, Hispanic, and Native American students-- were from the richest 1/5 of the Black, Hispanic, and Native American populations nationally. So the most privileged one, 1/5. If Black students were as underrepresented at Harvard as first generation college students had been, then Black students would have been at a 2% representation rate, rather than the 15% that Harvard provided. UNC-- and David touched on this-- has an egregious history on race. And then if you look today on socioeconomic status, they pride themselves as being the people's university, and they have 15 times as many wealthy as low income students. Racial diversity without socioeconomic diversity.

So it seems to me there are two paths forward now for universities who care about race and are now going to have to care about socioeconomic diversity, more than they did in the past. One is to try to recreate the old system, the economically biased system, through the use of the personal essay loophole. And as David mentioned, the Supreme Court did say that you can consider the individual discussion of race. And they talked about adversity and inspiration.

At the same time, they immediately pulled back, and the majority says, but don't try to just engineer what you had been doing in the past through the personal essay loophole-- the dissent called the personal essay loophole lipstick on a pig. They used the phrase "don't be fooled by this." If you try to do this, you're just going to end up in court again.

And so what we're left with, in terms of that approach, I think, is one advocated by Richard Rothstein, a historian of housing segregation. And he advocated that universities should just defy the Supreme Court. Just don't disregard what the Supreme Court said, which I haven't heard a single university president or administrator take him up on it. But that's an option.

The second option, which obviously is the one I favor, is adopting authentic race-neutral strategies, which is legally safer, much safer than the first option, but is also much more expensive, which is precisely why universities haven't done it in the past. You have to provide financial aid to students who are economically disadvantaged, and universities don't want to take money away from faculty salaries and administrator salaries and other things. They would rather devote the resources to those other things than to financial aid.

So in my view, the leading race-neutral alternative is to provide an economically-based preference to students, and I'll go into a little bit of detail on what I mean by that, and provide more financial aid. We can also have better recruitment of students. It's perfectly legal to be targeted with race in recruitment, and it should be, and universities should do a better job of that. There are some that are using percentage plans, like the top 10% plan in Texas. We've just seen Tennessee and South Carolina adopt that type of program.

And then others are talking about increasing the number of community college transfers. And so Berkeley and UCLA, which have had to deal with a racial preference ban for decades now, they admit about a quarter of their class from community college transfers. And because community colleges are much more economically and racially diverse, that provides more diversity at Berkeley and UCLA.

So what happens if you provide a socioeconomic preference? Well, this was talked about in the oral argument at the Supreme Court. It's stimulation D, which is one of the simulations that I did in conjunction with Peter Arcidiacono. And in this scenario, Harvard would get rid of its unfair preferences for privileged people.

So it would get rid of the legacy preferences, get rid of the preferences for faculty children. We actually left athletic preferences in there, so that's something that universities might do that we were not suggesting happen. And provide a socioeconomic preference to those who are economically disadvantaged that would be half the size of the current preference for recruited athletes.

And here are the results. You see White percentages go down, and partly because of getting rid of legacies and faculty preferences. Asian Asian-American admits go up. Black representation went down from 14% to 10%, which I'm going to talk about a little bit more in a minute. Hispanic representation actually increased to 19%. The total underrepresented minority population would remain about the same.

In terms of the academic preparedness of the class, Harvard complained, oh, this will be a terrible thing because we're going to have to admit students who are less qualified. They went from the 99th percentile to the 98th percentile in SATs. you? Can see at the bottom there, there's a lot more socioeconomic diversity, so you're admitting a lot more students who have overcome economic obstacles. The fact that the class as a whole is at the 98th percentile in SAT scores ought to be pretty impressive. It's impressive to me, at least. I don't think it's a dimunition of academic quality.

OK, now let me talk for a minute about that drop for Black representation, from 14% to 10%. One of the key things to note is that in the simulation, we did not have access to wealth data. That is your accumulated assets. Not your annual income, but your accumulated assets. And the reason that's important is precisely because of the history of enslavement and segregation and redlining. OK, I'll wrap up. I have one minute left and I've got a bunch of slides.


But I will summarize the last five slides in one sentence, I guess. But this is an important point on wealth. I strongly advocate that universities consider wealth and admissions. Number one, it's the fair thing to do, because if you come from a low wealth family and do pretty well despite that, that's impressive.

Secondly, it's going to have a very, very positive disparate impact racially. It's going to benefit Black and Hispanic students much more, because the income gap you can see in America is substantial. The wealth gap is gargantuan. And that's because wealth is handed down over generations, so it better captures the history of slavery and segregation.

So the next question, which I will summarize in 30 seconds is, are conservatives going to attack race-neutral alternatives? And Deborah's going to talk about this anyway, so I'm looking forward to what she has to say. There is a case, as the Dean mentioned, the Thomas Jefferson case-- that's very troubling to me that they're going after socioeconomic and geographic preferences.

I think there's enough from the Supreme Court Justices to suggest that that's unlikely to prevail. And so the dissent said nice things about socioeconomic preferences. Justice Thomas said nice things. Justice Gorsuch said nice things. Justice Kavanaugh said nice things. And Justice Alito didn't say anything, but he had said nice things in Fisher II. Thank you.

DEBORAH HELLMAN: OK, thank you so much. It's really a pleasure to be here to see so many of my students and to be on this panel. And thank you, Kimberly, for organizing it.

So I want to talk about two questions which have already been mentioned, one by David and one by Richard. And I'm just going to drill down into them a little more. So I think the case tees up two really important questions.

The first one I want to talk about is something I think that David mentioned. So in the opinion the Chief Justice says the following. "By accepting race-based admissions programs in which some students may obtain preferences on the basis of race alone, respondents programs tolerate the very thing that Grutter first swore, stereotyping. The point of respondents' admissions program is that there is an inherent benefit in race que race, in race for its own sake."

And then a little later, the Chief Justice said the following, which David mentioned. "At the same time, all the parties agree 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."

So the first question that the opinion tees up is, what is the difference between an admissions policy that counts race que race, or race for its own sake, which is prohibited, and one that takes into account how race affected an applicant's life, be it through discrimination, inspiration, or otherwise, which, the chief says, is permissible? So a university aiming to comply with the court's decision must avoid the first, but is permitted to do the second. So that combination suggests there's a distinction between the first and the second.

What I want to drill down on is what is that distinction? Well, you could say as a matter of implementation, it's simple. No check boxes, but you can use an essay. And that's certainly true.

But the essay is the easy part. When a university looks at the essay, what is it allowed to do exactly? What is it allowed to consider? After all, the Chief Justice also emphasizes that universities may not simply-- this is a quote, "Universities may not simply establish, through the application essays or other means, the regime that we hold unlawful today."

So what exactly does this require an admissions official acting in good faith and aiming to comply with the court's command not to circumvent, what are they allowed to do? Well, one thing we is they can't "stereotype". And I'm going to put that in quotation marks because one question is, what exactly is stereotyping?

But they can't stereotype. You heard that in the passage that I read to you already that that's bad. And actually, the word stereotype appears several places in the opinion, and always with this negative valence, like stereotyping bad.

Here's another passage. "The race-based admissions system that respondents employ also fail to comply with the twin commands of the Equal Protection Clause that race may never be used as a negative, and that it may not operate as a stereotype." So whatever we're supposed to be doing, it's not stereotyping.

But what is stereotyping exactly in the court's view other than something that's not good? So the Chief Justice offers us this. "Harvard's admissions process rests on the pernicious stereotype that a Black student can usually bring something that a white student cannot offer."

So what I take from that, is that what a stereotype is, in the Chief Justice's view, what is that we're supposed to avoid, is a generalization about people of a particular race. So what's forbidden is people of x race generally, have y experience, which gives them z trait. And therefore, people of that race get a plus because we want people with z trait, whatever the trait is.

By contrast, what is permitted-- so the court offers us-- if we want to know that's the forbidden, we need to what's the allowed. The court explains, a benefit to a student who overcame racial discrimination, for example, must be tied to that student's courage and determination. I don't have slides. But that student appears in italics. So what is permitted, by contrast, is something like an applicant describes her personal experience of race, which displays that she has some z trait, and the university gives that person a plus.

OK, all of that makes me wonder-- so now I'm just trying to extract what it is that the court says is permissible, what is it impermissible. And now I'm going to raise a few questions about that. So here are some of the things that I wonder about.

Imagine that an applicant writes, I'm a Black man in America, and that's affected me in all the ways you would expect That is, the applicant invokes the stereotype. We have some views, generally, about what the experience of race might be. But this person doesn't describe it in detail.

Is that on the permissible side because the applicant is invoking the stereotype himself so it's individualized? Or is that on the impermissible side because it relies on a stereotype? In other words, how individualized must things be?

Stereotypes, remember, are a form of generalization. And sometimes they do capture something that's true, not of everyone of the group, but generally. They're generalizations that are sometimes accurate as generalizations.

So by rejecting racial generalization, which is what the Chief Justice appears to reject in calling them bad stereotypes, what exactly is the court rejecting or mandating? Well, one thing you might say is the court's asking, saying, make sure the generalization is true about that particular individual, which sounds like a reasonable request or a reasonable command. But here are some worries or some concerns you might have about that.

Suppose, not unreasonably, that race has a powerful effect on people's life experiences. This way of framing what the court can-- what a university can and can't do says to the university, you can only take account of those effects to the extent that the candidate makes that connection in their particular case.

The problem with that is it lets us that it applies to the individual so that they're not an outlier. So you could say that's a good thing. But the problem with that, is that this approach will mean that the university will miss the cases, meaning the students or the applicants, where the generalization is true of that individual, but the applicant doesn't discuss it. So we're going to miss that. So there's a trade-off there.

Also, and I think of this as a perverse consequence, it's likely to invite students who their experience of race has affected them, to discuss that. It's saying, you got to discuss this on your essay for us to take that generalization into account. And if part of the impetus for the court's opinion is to say that we shouldn't pay so much attention to race, we don't want to make race so salient, the perverse effect might be to make everyone emphasize this racial dimension of their experience even more because that's the only way we can use that generalization, is when they've tied it to their individual experience. OK, that's the first question about what does that mean that distinction.

The second question I want to discuss is the one that Richard teed up. And that is, can universities use facially-neutral means to achieve diversity? And by facially-neutral, especially for those of you who haven't yet had Con Law, I mean methods that don't have an explicit reliance on race, so like giving a plus factor from students from disadvantaged schools, or who are poor, or first-generation college students, or in the top 10% of their high school graduating class.

You might think that the answer to that is an obvious yes, of course they can do that. After all, in prior affirmative action cases when the court was assessing whether the explicit use of race was narrowly tailored, as strict scrutiny requires them to do, they asked, were there race-neutral alternatives they could have used? It'd be sort of weird if they were asking whether there were race-neutral alternatives they could have used to assess whether the use of race passed strict scrutiny if the use of those race-neutral alternatives wasn't permissible. So that would suggest that they can.

In addition, as David mentioned, the opinion in SFFA doesn't explicitly overrule Grutter, which suggests that diversity is still a compelling governmental interest, which would seem to suggest that you could use race-neutral means to achieve it. So why think universities would not be able to do it? All of that seems to suggest that they might be able to.

Well, I'm going to invite you to think about a hypothetical here. Imagine a bad university that says, we're going to give a minus to people of a particular race. A minority race, we're going to give them a minus. And they get sued for race discrimination. And the court says, you can't do that. That's race discrimination.

And then they say, OK, we're going to have a preference for people from-- or a demerit, a minus for people from particular zip codes because zip code correlates with race. And they manage to achieve much of what they had achieved before, of excluding people from particular races, by using zip code. And you might say, well, they can't do that. That's clearly impermissible. And that's likely the result that a court would reach.

But why can't they do that? The standard doctrinal answer is because you adopted it with the intention of excluding the Zip Code Policy with the intention of excluding people of a particular race. But if that's what made the Zip Code Policy the equivalent of an exclusion on the basis of race, why isn't a policy to include people of a particular race if you adopt a class rank or a community college plus factor? If you do that in order to increase racial diversity, why isn't that just doing the same thing, if the intention is what transforms it into a race-based policy?

Those two suggest they should be treated the same. So now we have a problem that those facially-neutral policies seem to be under current doctrine or one reading of current doctrine impermissible. Now I think there are arguments to that can be made for why they're clearly permissible. 1 minute. Everything that the court said in the prior affirmative action cases suggests they're permissible. There's a bunch of stuff to suggest they're impermissible. The logic of focusing on what the intent is, so where does that leave us? I think that SFFA gives us some tea leaves to read, Richard put some slides up.

I actually think Kavanaugh says in the strongest way that he thinks those race neutral means are permissible. But I would say we're reading tea leaves here. I think this issue will come up. It already has come up in the K to 12 education context. And I guess we'll talk about that in the Q&A. So I won't say anything about the Thomas Jefferson High School case, which clearly raises that issue. Let me just end by saying I do think the deliberate use of facially-neutral means to achieve diversity is and should be permissible. But I think reaching that result will require the court to make changes in the current doctrine.

That is it's not so easy to explain why they're permissible within the confines of the current doctrine. And at least as a con law person, it will be interesting to see if they get there how they get there and what the ramifications for that for con law doctrine are. And I'm happy to chat about it in Q&A.

NIYATI SHAH: So I am going to talk about the Thomas Jefferson case today. But before I do that, I want to roadmap a little bit of what I want to talk about today with you all. And that's specifically to ground this case into the reality and what its motivations is, and what is coming next, and what the motivations for what's coming next. To be clear, there was a goal behind this case. The architect behind this case is Ed Blum. He has a history of doing away with things that increase racial equality in our country. He was behind the Shelby County case which did away with the Voting Rights Act, preclearance process.

It's behind fisher one and fisher two. And in those cases, Justices Thomas and Alito basically brought in the Asian-American model minority myth into play, which really just is an age old trope of divide and conquer. And that resulted in Ed Blum saying, "well, gosh, darn it, I need some Asian plaintiffs." Quote, unquote. And there have it. There comes his motivation for bringing in the claim against Asian-Americans in Harvard.

So now we're coming to this case. In the opinion, one of the reasons that race conscious admissions policies were further curtailed is because Justice Roberts thought that it was almost impossible to really measure the narrow tailoring of these policies, and whether it could be feasible to achieve their goals, and whether that was measurable. And one of the explanations that his opinion gave was that, look, universities don't really collect data. They don't collect disaggregated data. That the racial classifications are too broad.

Asian-Americans could include East Asians, South Asians, Southeast Asians. For example, Northern African or Middle Eastern people are completely not included in some of these categorizations. Are they considered Caucasian? What does it mean to be Hispanic and whether you are Latino.

I mean, we the Census Bureau has some issues with that. So he goes into this long issue. And instead of saying however that, oh no, we should collect this disaggregated data so we can accurately measure whether we're narrowly tailoring this. But it doesn't really matter in a footnote, so don't do it anyways because what's the point?

And to be clear, though, if we want to support Asian-Americans, disaggregated data is essential because we are not a monolith. And we know that, for example, Southeast Asian students are underrepresented, and that they are direct beneficiaries of race conscious admissions.

And coming back to what the goals and motivations are, if you want to advance the rights of all Asian-Americans, then you should not exclude them when you file a complaint against Yale for discrimination. And that is exactly what SSFA did. Southeast Asians, they don't count. They're not Asian. That's different. No, no.

So that's again, grounding this in the motivations. But it is very clear that Asian-Americans are beneficiaries of affirmative actions as are we all because diversity helps us all in a learning environment. It is not just for the beneficiaries of these programs. And it's also important to realize that Asian-Americans overwhelmingly support affirmative action.

During a voter survey, more than 7o% or close to 70% supported affirmative actions. And this was also reflected in a Gallup poll. But we are where we are. And it is interesting to talk about what's next. And race neutral is what's next. And what's going to happen on the ground, and what is the reality and the motivation again.

David talked about zero sum. Education is not zero sum. Public education certainly is not zero sum. But this phrase was used by Pacific Legal Foundation in the TJ case during the Fourth Circuit argument, and it was repeated in Justice Thomas'. I'm sorry. Justice Roberts' opinion.

And the Thomas Jefferson case is not about affirmative action. It was about race neutral or facially neutral policies and changes. We're talking about how this would work in practice. And this case was happening simultaneously, concurrently with these cases, in anticipation that once race conscious admissions policies in higher Ed were curtailed, how do we then do the next issue to further restrict access to educational opportunities? And this is where race neutral attacks or coming in.

And so what is the TJ case, and what happened in that case? I would say that, the Thomas Jefferson High School for Science and Technology is an elite public magnet school in Fairfax County. In that case, there used to be about four feeder middle schools that were in the wealthiest part of Fairfax County. And the school board went to talk-- looked at the Fairfax County and the makeup of who was getting admitted into TJ. And it was very imbalanced.

There were four feeder schools. The rest of the county was lagging behind. there was a severe representation of Black and Brown students, but also underserved Asian-American students. And again, we talked about that data disaggregation. So there is an awareness of race and the need for multi racial diversity, socioeconomic diversity for the less wealthy part of the county.

And so what did the school board do? They enacted these facially neutral policies. They eliminated an admissions test. Because let's face it, test prep is gaming it. It's available for people who have wealth to do it. They eliminated the $100 application fee, and they expanded the size of the class.

They increased the requirements for who would be considered or made the requirements more stringent for who would be qualified students, which meant that they had to have a higher GPA. They had to complete higher level classes, including algebra, honors science, and an honors social studies, or English classes. This applied to everybody equally.

And the top 1.5% of those qualified students with the higher coursework would get-- would be qualified to be admitted into TJ. But that didn't fill the whole class size. And so what happens then is the rest of the qualified pool would be selected through an admissions process, whereby the applicant's race was erased. And so not only was it race neutral, it was colorblind, right?

But despite all of this, some Asian parents, buy these repeat players like SSFA and PLF. It brought a suit, that because the school board was aware of a lack of diversity. That meant that these race neutral policies were racial proxies. And they're wondering what was summary judgment, civ pro, at the trial court level because they did some really bad math for considering this as TJ, right? It's a little ironic.

But anyway. So the bad math was this, they said, before these policies, we had x number of Asian students. And after these policies, the total number of Asian students fell. Now why is this bad math? Because if we do that before and after comparison, what does that mean?

So let's change the hypothetical in one key way. Instead of an over representation of Asian students, we had an over representation of White students, and we had an under representation of Asian students. School board is aware of this. They enact these same race neutral policies, and the Asian-American student representation goes up, the White student population goes down. Well, that's not race neutral anymore either, is it? Because now, this discriminates against White students, right?

So what this before and after analysis does is it maintains the status quo. It creates a baseline. And if that's going to be the only way, that if you have to maintain the baseline, then we can't ever have change. We can't ever be aware of the fact that there are disparities in the access, right? That can't be correct.

So what is the correct metric, right? Does it mean that Asian-Americans couldn't access these education levels after the fact? Did their share of the applicant pool of qualified students go down? No. They were still overwhelmingly over represented.

Oh, I forgot to mention one thing. Terms of other considerations for admissions. After the top 1.5%, you could consider things like, socioeconomics. Whether you were eligible for reduced or free school lunches. Whether you were limited English proficient, in which case, Asian-Americans are overwhelmingly represented. Or if you had some sort of disability.

The beneficiaries of these considerations were also overwhelmingly Asian-Americans. Yet, that was problematic. So what happened? As I mentioned, let's go back to the civ pro. The plaintiffs won at the trial court level. The school board appealed to the Fourth Circuit, and the Fourth Circuit issued a stay of the trial court's ruling that they needed to go back to this test heavy, socioeconomically disfavored process that was there before.

And so they stayed that ruling from the trial court and appealed to the Supreme Court to say, no, no, while this appeal is going on, lift the stay, go back to that old system. And luckily, the Supreme Court did not do that. They did not lift the stay.

However, three Justices that Rich mentioned said, no, no, no, we should lift the stay. Who were those Justices, by the way? Thomas, Alito and Gorsuch. They wrote separately that they would have lifted the stay. So what do we know now and where we're leading is that, the Fourth Circuit ruled in favor of the school board.

PLF has filed for a cert petition. That cert petition is pending. It has not been fully briefed. And that there are three justices who agreed with them already, right? In order to lift the stay, that meant, that they thought that the trial court had correctly decided this. They need one more vote to take this case, and that will decide the future of what these facially race neutral policies are.

And as Debbie mentioned, can these policies be implemented if you remain like an ostrich and are completely unaware of the diversity that exists or doesn't exist in your institution? It's not limited to race, but it should include race, if you believe in diversity as a compelling interest. And as David said, nobody said that wasn't important. So if you are aware of the racial diversity in your institution, does that automatically negate you from implementing so-called race neutral measures?

And according to the Pacific Legal Foundation, the answer is yes. According to SSFA, the answer is yes. And that's why I come back to why are there-- what is the underlying motive here? And I think we can't divorce that from these cases and look at them in a hypothetical situation. So thank you.

RICHARD KAHLENBERG: So this is a contested area. There's lots of research on the issue of how effective were these race neutral alternatives in achieving racial diversity in the states where affirmative action was banned. In the oral arguments, the Solicitor General representing the Biden administration said that it was mixed. That there were some states where race neutral alternatives had been effective. And she said, at that point, we need to study them and find out what they're doing right. And there are others that have less effective.

I mean, I have my own view. And I'm sure others on the panel will have different views on how effective some of the states were. But I just want to underline one point, which is that, if you were an elite university like UC Berkeley that was trying to use race neutral alternatives to achieve racial diversity, you had a big disadvantage because all your competitors, or virtually all your competitors could still use race in admissions. That will change under the Supreme Court ruling. Everyone will be on a level playing field.

But to make this concrete, if there were a highly talented Black or Hispanic student who was admitted to Berkeley without any consideration of race, they probably also got into an even more selective college like Stanford, which could consider the use of race. And so they went to Stanford. And so to the extent that some of the evidence was discouraging at a place like Berkeley.

We have to remember, that's not-- that's a test case for what was true in the past, but will be in a different situation in the future where everyone is on a level playing field in competing for talented Black and Hispanic students.

DAVID: Yeah. So a few reactions to that. One is, it's not an either or, right? We always talk about, oh, we should put more weight towards socioeconomic status and less to race. Or less to this factor, and more to this factor. And the beauty of higher education when you have diversity, it's across so many different backgrounds, right? You have students learning together, and growing together, and learning from one another. Even if they disagree, they just learn about different perspectives, right?

So how do you best capture that? You don't just, well, let's do a race neutral plan and see how many Brown and Black and Native American students we can sweep up with that. It has to be a comprehensive approach with recruitment, with financial aid, with the admissions programs itself. What criteria they're going to consider as part of their admissions policy.

Because the fact is that, all of the universities across the country, all of the top universities in states that have stopped affirmative action have all plummeted. Not just gone down by a little. I'm talking about in the first five years after that. And how and why? It's because testimony from our students said, you know what?

If UNC no longer considers race as an admissions factor, that tells me I don't belong there. And this is a University, again, with a reputation like it has. Again, founded for the children of enslaved people, and still struggles. I mean, it has what one of our clients called racist graffiti across the campus.

And we're like, what do you mean? And she's like, these buildings that are named after White supremacists. These Confederate soldiers. How does that make me feel? Like, I'm wanted here at this university. And so I think it has to be a comprehensive approach.

But it's also incumbent on these universities to break down their existing systemic barriers. So like, how much weight are they putting to SAT scores? Because how many of you were able to buy up your test scores? And I want to say, I'm going to phrase it that way. How many of you were able to buy up your test scores through tutoring programs or taking classes?

I remember, hearing about it from a friend of mine who went to Bartlesville Oklahoma, of all places. But he actually had a class for a semester long where they just tested, and tested, and tested, and learned how to test. How many of you took classes to buy up your LSAT scores? And what does that say?

And so our educational system, the public educational system is so wrought with inequality. And how and why, it's just arbitrary, right? It's not like people don't set that in motion through themselves and through their own policies that they adopt. And that's how and why.

I think, they need to look at breaking down systemic barriers, putting less weight to standardized testing, tearing down legacy admissions programs, getting rid of arbitrary course degree requirements. So some department degree programs require you to take an AP calculus course, even though AP calculus, you would never use that knowledge in the degree program, but they still have it there.

And how and why? Because that's just the way they've done it. Or because-- well, many other reasons, perhaps. But it just has to be a real comprehensive approach to ensure we don't lose ground. And we're trying to get the word out about that as well.

KIMBERLY JOHNSON: One of the things that came up-- so I was able to attend the White House summit about the cases that they held to discuss, what does this mean for higher education. And one of the things that came out of the summit was to think about not just rethinking admissions and always doing what's been done, right? So significant legacy preferences. Rethinking how we partner with, for example, K-12 institutions.

And so, in bringing up the Thomas Jefferson case, I'm interested in what you all think the implications are for K-12. So certainly, when the litigation was being brought forward, the mantra was, we have to make sure there's a level playing field. But we know from K-12 education that we do not have a level playing field in this country, that we do not have equal opportunity in our schools.

And so I'm interested in your thoughts about how should we think about the entire K-16 systems. So not just what will this mean for higher Ed. But all of the higher Ed students are coming from K-12. And so in some of the states where they have banned affirmative action, some of those universities actually are partnering with school districts and others to do things like teacher programs and do pipeline programs. And so I'm interested in your reflections on how this SSFAs decision might impact K-12 education as well.

And Debbie, you didn't get to talk about the TJ case. I was trying to open up the K-12.

DEBBIE HELLMAN: OK. Well I'm happy to talk about the TJ case. But the question you're asking is a little-- I would love to know what's going to happen to K to 12 education in terms of whether it's going to-- whether the decision is going to spur politicians to invest more in K to 12 education. I'd love to see that. But that's outside of my area of expertise.

I think the TJ case is a harbinger for the question about how we think about race neutral policies that are aimed at increasing diversity, not just in the education context but beyond. There are many policies that we adopt. We adopt some, I don't know, a universal pre-K because we think it's going to reduce racial disparities in education. That also is a race neutral policy that's adopted in part because of the impact it will have.

So I think that the issue is really big. And that example is limited to education. Health care, there's a lot of policies we might adopt in the health care space that are adopted-- could be adopted, at least in part because we think, they're going to reduce racial disparities in health outcomes, or something like that. So the issue is really big. Much, much bigger than-- if you think about the world of elite higher education, that's a narrow world compared to what the question about race neutral policies imply.

So I think it's a really, really important issue. I want to say one thing in reaction to something that Niyati said. You said, aware. I think, aware, if you're aware of the racial consequences. I'm not sure aware is the right word.

For those of you who've taken con law already, you know if a policy has a disparate racial impact, what matters is whether you adopted. Whether the governmental actor adopted it because of, and not merely in spite of. That's the test now. It's racial impact. So it's about intention, not just awareness.

So if you're just aware of the racial impact, I don't think that that is actually a problem. But if you adopt a racially neutral policy because with the intention motivated by the racial dimensions of the impact, those are the things that would be problematic. And what I want to ask you is, whatever you think of those race neutral policies. Richard said, and he has a long record of being in favor of socioeconomic status, like adopting those policies for reasons that don't have to do with their racial impact, but because he wants us to care more about the socioeconomic and class effects.

Somebody else, I'll not put a name to this position, might adopt those policies because they reduce racial disparities. I find it weird that the constitutionality-- that it would be constitutional for Richard to do it, but not for someone else. That seems bizarre to me.

Because he cares about something else, because he cares about socioeconomic diversity, he can adopt these race neutral policies. But someone who cares about reducing racial disparities can't. That's what would follow from the idea that it matters if you adopted it because of, not merely in spite of the racial effects. Richard would pass that test. Somebody else wouldn't.

So I think that's the aspect of our doctrine that we need to interrogate. Is the intention of the governmental actor really what's relevant in deciding whether you think these facially neutral policies should or should not be constitutional? So that I think is where we're going to see some at least inquiry, I hope.

NIYATI SHAH: Yeah. So I want to just add two things to that. I was very liberal with my phrasing in the interest of time here, but you are exactly right. Is it because of, rather than in spite of the impact? And disparate impact, again, was my analogy to the bad math here because disparate impact is not that simple. And the test for intent isn't simple. Especially today, as we know, it's much more-- you have to look at a whole bunch of different factors to suss out intent because you don't have that smoking gun where somebody is saying that I want to hurt Asian-Americans or I want to restrict access to Black and Brown students.

You don't have those. Very rarely. I mean, if you had that, then it doesn't matter what the impact is. That's still intentional discrimination, right? If you said that I want to harm Black people through these policies, even if you had no impact, that's still intentional discrimination, right? But we don't have that. And so, there is a test developed for that.

And I want to talk about TJ again and use it as an example to go back to Kim's question here about, what is it? What our pipelines going to look like? And we talked about these policies that the school board adopted for admissions to TJ that are racially neutral, and higher coursework was one of them.

Well, it turns out that some of those higher level math and science courses are not available at all the middle schools in Fairfax County. Right? So what then? What about that additional barrier that those students have? The school board said, oh no, if your middle school doesn't have it, that's OK, we'll figure out a way to get you the access to those courses.

But that still means more resources from that student from that family. And that is going to impact the pipeline of who has access to educational opportunities. And I don't want to catch this in terms of elite institutions because it is restricting access at so many levels from bottom up.

These coursework requirements to access additional opportunities is something that needs to be addressed. And it gets more amplified the higher up we go. And what courses, what AP classes, what counselors schools have, what other resources they have to play sports. We've all seen the Varsity Blues scandal. I won't even go into that. All of these things are at play. And that's just in the public education system in the K through 12.

What about the standards that apply to private institutions? Do they have any? Right? When you say, I want calculus, does a private institution actually meet that level of what calculus looks like or calc bec looks like? They don't have to. They just claim that they're doing that above and beyond. And sometimes, based on their reputation, they're given the benefit of the doubt.

So again, where are the inequities in that? And how does that play in? And as we talk about school choice more, how is that going to get exacerbated going forward?

DAVID HINOJOSA: And I want to just comment briefly on the awareness issue. So yeah, it's true. When you have to prove intentional discrimination through Arlington Heights, and I've done it in cases before, the bar is extremely high, especially if you're in the Fifth and 11th Circuit courts of law. It's maybe even higher. But the fact is that, they want to blur the line, right? Their whole strategy.

Even when you look at Chief Justice Roberts' opinion on, you can use race. But you can't use it this way. But you can use it this way maybe, but just don't-- you can be aware of it, but just don't consider it, right? And this blur the line strategy is now, OK, well, yeah, the doctrine says, intentional discrimination. This is what you have to do. You have to act because of this, right?

But what they're suggesting in this case, in the Coalition for TJ-- and there's one out of Boston. There's another one from Maryland. There's another one from New York. There are somewhat interrelated. In Philadelphia. Where they're challenging race neutral programs, right? So all the time during the SSFA cases they were like, you should be using race neutral programs. You should be using race neutral programs, right?

Meanwhile, they have these K-12 cases. And then, like on CNN with Abby Phillips I was on, and they had the SFFA board member there and she said, well, what about socioeconomic status? I mean, can you consider socioeconomic status? And he was like, no. It's got to be about merit. Merit is test scores and grades. That's all that it has. That's all schools should be considering.

And that's the kind of mindset. Because it is, again, not just about tearing down affirmative action, but it's about tearing down racial equality in America. This is part of the anti civil rights agenda from SFFA and other supporters. And so they want to take this where if you are aware, you hold a meeting and you say, look, some of our community are not accessing health care or not accessing housing and stuff. And then all of a sudden, you act to address that inequity.

They see everything as a zero sum game. And you can't win. So they want to blur that line between awareness and acting on an intent. So I just wanted to add that. Apologies.

RICHARD KAHLENBERG: Kimberly, can I add one quick thing?

KIMBERLY JOHNSON: I want to make sure we get to some student questions.


KIMBERLY JOHNSON: Yeah. Any questions from the students or others in the audience?

AUDIENCE: I have a question specifically targeting how admissions officers in the small and regional schools of our schools be able to research deeper on racial diversity? Because I can see how a school-- like, elite schools like Harvard have a ton of money that can do all of these extra recruiting things.

And I understand how large universities have been following in the model of the UT system could adopt like a top 10 program. How would you counsel a smaller liberal arts school who can't afford a top 10 program, who doesn't have the financial resources to increase their recruiting, but also relies a ton on the funding from things like legacy admissions and athletes? How would you counsel them to increase their diversity?

RICHARD KAHLENBERG: Well, I'll jump in on that one. All right. Some institutions will need public support. The public opinion data on this suggests that most Americans don't like the consideration of race in deciding who gets in. But most Americans do support affirmative action broadly because they want more diversity. And so in the states where race based affirmative action was banned, there was public support for greater financial aid at places like-- in conservative states, like Texas and Florida. They created new scholarships that could be used.

Now those are for public institutions. But I think there ought to be a groundswell of support for financial aid for institutions to avoid the resegregation of higher education. And this is the moment when there will be the opportunity to get that support. So in the spring, there will be-- the universities will report their numbers on race. And I agree with David, that in the short term, there will be a drop in Black and Hispanic percentages.

I think in the long term, that won't be the case. That they'll be able to put in new programs. But in the short term, there will be a wake up call. And people will talk about the disastrous effects of doing nothing. And that's the moment to try to capitalize.

And I talked to some admissions officers at small selective institutions that said, that the crisis will be a boon for fundraising, because people of goodwill are going to recognize that having an institution with tiny percentages of Black and Hispanic students is unacceptable. And so there will be new opportunities.

On the legacy thing, I'll push back a little bit because there's research to suggest that the existence of a legacy preference actually doesn't increase donations overall for the institutions. There was one study that I was a part of that looked at 75 institutions that had legacy preferences, 25 that didn't in the top 100 at US News and World Report. And the existence of a legacy preferences didn't increase donations. And people say, well, how can that possibly be true?

And there's another other research that says, yes, donations do increase when children are in sophomores, and juniors, and high school, and their parents give more. But then when the kids are rejected, the giving falls off a cliff. Because the parents are so angry, they said, I got into this institution. My kid is probably more qualified and they can't even get in with a legacy preference.

And all those things are true. But it doesn't acknowledge that the system has gotten so much more competitive. So I think there are other ways that don't involve shaking down alumni to raise money to make the necessary changes.

NIYATI SHAH: Yeah. I was going to say, I think financial aid is important. And I agree with that. But I again come back to, is that enough? Will it fill the gap? And I come back to this issue of how do you get that financial aid? Who is made aware of it? What are the processes that are involved in obtaining it? And who gets left out through those processes?

And if that didn't matter, then some of these basic face neutral challenges like the one in Montgomery County, Maryland Magnet school programs, it was for middle schools. And one of the changes that they made that is being challenged is that, instead of creating an opt in application system to this program, if you are qualified, your universally considered, right?

So they reduce the barriers to entry, and that is problematic. And again, why are these barriers important, is because it exacerbates the disparities that exist. And so while financial aid is important-- that's why socioeconomics can't fill the gap, because some of the things that help students who are less affluent, they need to be able to overcome barriers from somebody else. They can't do it themselves because they're already too many barriers in place for them. And I think that's important to consider.

Not to say that financial aid and increasing access to financial aid isn't important. It absolutely is, and it will help bridge the gap. But it's not going to bridge the gap fully.

KIMBERLY JOHNSON: Other questions? Yeah. This is going to be the last question.

AUDIENCE: General question, though. As a graduate of a rural high school, I wonder what place or what consideration is being given to the unique circumstances that exist within rural communities? A lot of the discussion today, to me, leans more toward what would maybe be considered in the city, especially if you're talking about certain classes being available. I mean, for instance, in my high school in Arkansas, we didn't have AP calculus. And it wasn't because we weren't qualified to have it. It was just that the state didn't give us a teacher to teach that.

So I just wonder. As we consider race neutral policies moving forward, [INAUDIBLE]?

DAVID HINOJOSA: It's another consideration, right? Harvard has over 100 factors that they consider. The one that's no longer allowed to be considered is race. Rural, at least, I don't recall whether or not at Harvard. I don't if Rick or Nancy recall or anyone else. But it was considered at UNC also.

And it's certainly legitimate to consider it, right? Because they have access to different resources and everything. Is that something that's more popular in a state like North Carolina that wants to push rule? Because the population of their rural communities is a lot wider, so they're more comfortable with supporting those policies, as opposed to more aggressive policies that might reach other students that are different. Again, it's another criteria that can and should be considered in the whole application.

DEBBIE HELLMAN: I was just going to say one thing that bridges those two questions. I think, you can. But the limitations about the effectiveness of some of these policies are in part financial, unless the cost of higher education go down. I mean, we can't forget how few percentage wise schools are need blind to begin with.

And if you're not need blind, that means there's a plus factor for being a full pay student. Actually, affirmative action explicitly for the wealthy. They count it as a plus that you're a full pay. And actually, some pretty elite schools have that.

So if you look at the list of need blind schools, it's actually fairly limited. So we're really talking about a major transformation to make it the case that students from lower socioeconomic backgrounds can access higher education, other than the most elite schools. And I don't think we should forget that.

KIMBERLY JOHNSON: Yes. And I'll actually just wrap up with one point, which is that the educational disadvantage that you're talking about, not having access to those types of AP classes, this is actually the exact type of educational disadvantage that in a piece I wrote in the Harvard Law review, I talked about that universities should consider. In other words, how have you done with what you were provided? And then, are you experiencing educational disadvantage? So you couldn't get all those extra points for AP.

And that was definitely the sense I got in the room at the White House Summit, is that universities are just very much rethinking their admissions policies. I think this kind of educational disadvantage is definitely one that I hope that they will give greater consideration to. It was already an inequity in the system. And it's one, that as we reexamine higher education admissions, they could consider giving additional weight to. So it's certainly a possibility for the future. But with that, we are definitely out of time. So I just want to thank our panelists for coming.