July 28, 2023
After anti-affirmative action activist Edward J. Blum emailed 150 schools earlier this month demanding compliance with the Supreme Court’s ruling against affirmative action, legal experts are divided on how closely the demands adhere to the decision.
The letter, dated July 12, is addressed to the presidents, deans of admissions, and general counsels at the institutions. Blum wrote on behalf of Students for Fair Admissions, the group that successfully challenged Harvard’s and the University of North Carolina’s race-conscious admissions policies.
Approximately 100 “flagship” public universities and another 50 private schools received the letter, according to Blum. The list of colleges that received the letter is not public.
Harvard categorically denies allegations of discrimination but announced hours after the Court’s ruling that it will comply with the decision.
University spokesperson Jonathan L. Swain confirmed that Harvard had not received the letter last Thursday.
Schools must fully comply with the Court’s June 29 ruling “starting with the upcoming admissions cycle,” SFFA’s letter reads.
“At the very least, you should take the following steps to avoid violating the Constitution, Title VI of the Civil Rights Act of 1964, and other similar laws,” it continues.
The letter details four specific demands: hide self-disclosed “check box data” about race; prohibit admissions officers from viewing aggregated racial data; remove “any definition or guidance regarding ‘underrepresented’ racial groups”; and create clear guidelines that “race is not to be factor” in admissions decisions.
The last demand notes that essays, personal statements, and other aspects of an application “cannot be used to ascertain or provide a benefit based on the applicant’s race.”
But some legal experts believe the Supreme Court’s historic decision does not explicitly mandate all — or perhaps any — of the steps outlined in SFFA’s letter.
Jonathan P. Feingold, associate professor at Boston University School of Law, wrote in an emailed statement that “none of the four steps that Ed Blum includes at the end of his July 12 letter are mandated by the Supreme Court’s decision in SFFA v. Harvard.”
Both University of Maryland, College Park associate professor Julie J. Park and Berkeley law professor David B. Oppenheimer specifically called Blum’s fourth request — which warned against using application essays as a proxy for race and assigning a benefit accordingly — an overreach.
“I see Blum’s mandate and instructions as overreaching, given that information provided through essays or other parts of the application can still be considered in understanding how race may have influenced an applicant’s life or context,” Park wrote in an email.
Oppenheimer wrote that he believes Blum’s fourth demand “conflicts with Chief Justice Roberts’ majority opinion, in which he encouraged applicants to write about how they experienced racism.”
“Blum’s overreach is an exercise in wishful thinking; having won the case and gotten nearly everything he asked for, he is now behaving like a sore winner,” the Berkeley law professor added.
In an emailed statement Friday, Blum wrote that “much of what is discussed in these statements is gravely wrong.”
“If universities follow this reckless advice and tailor their admissions policies accordingly, it is likely they will be sued,” he wrote.
In its ruling, the Supreme Court ruled that race-conscious admissions programs violate the Equal Protection Clause of the 14th Amendment.
“Because Harvard’s and UNC’s admissions programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points, those admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause,” Chief Justice John Roberts ’76 wrote in the Court’s majority opinion.
“Universities may not simply establish through application essays or other means the regime we hold unlawful today,” he continued.
But in a caveat, Roberts added that “nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life” as long as applicants are “treated based on his or her experiences as an individual.”
Some legal experts, like UCLA law professor Richard H. Sander ’78, wrote that they believe Blum’s letter is a valid interpretation of the Supreme Court’s ruling.
While “the exact meaning of the Supreme Court’s language may not be resolved until further litigation occurs,” Sander wrote that he believes Blum’s interpretation “is very close to the Court’s intent.”
Harvard Law School professor Jeannie Suk Gersen — who supports affirmative action — also wrote in an email that Blum “is not wrong in saying that after the SFFA case, ‘essay answers, personal statements, or other parts of an application cannot be used to ascertain or provide a benefit based on the applicant’s race.’”
“It is in [schools’] interests to ‘create admissions guidelines with clear instructions’ to that effect, because if they don’t do that, it may be difficult to keep admissions officers from continuing to do what they were doing before the SFFA case, which the Supreme Court has said is illegal,” she wrote.