Can colleges still use race in admissions?

It’s a brave new world out there for college admissions officers. Gone are the days when they could use racial stereotypes as a stand-in for an applicant’s personal qualities or deduct points for being Asian American. When the Supreme Court finally put an end to these racist and unconstitutional admissions practices in June, it left many wondering: Are race-based admissions really dead, or will colleges find a way to keep judging applicants by race?

Here’s the hard truth: When the Supreme Court closes a door, it sometimes cracks a window. While racial stereotyping is out, the Court’s decision in Students for Fair Admissions specifically allows colleges and universities to consider an applicant’s discussion of how race affected his or her life, whether through inspiration, discrimination, or otherwise. Behold, the era of the racial identity essay question!

Elite colleges got right to work. As The New York Times reports, colleges’ new essay questions range from snarky (Sarah Lawrence, which asks students to write about how their college goals may be impacted by the Supreme Court’s decision) to perhaps trying a little too hard (the University of Virginia, which managed to craft a question that loops in both alumni children and ancestors of the enslaved men and women who built and served the university). But no matter how they ask the question, universities are undoubtedly collecting the same racial and ethnic information through racial identity essay questions as they did through an application checkbox.

Won’t this allow schools to continue racial discrimination in admissions? It all depends on what universities do with the information they receive in application essays.

If they use racial identity essays to evaluate applicants as individual people, instead of racial stereotypes, then great! That’s a win for equal protection.

If they use racial identity essays to figure out an applicant’s race and then continue using the same, racially discriminatory admissions policies as before, they’re in for a legal headache.

A Virginia school board learned this the hard way when it tried to get around a similar K-12 ban on race-based admissions by using racial proxies to admit students to Thomas Jefferson High School in Alexandria. Thomas Jefferson’s admissions application never mentions race, but the school board still managed to manipulate the racial makeup of the school through proxies, like an applicant’s middle school, that act as pretty accurate stand-ins for race.

University administrators are paying attention. At a major law school conference last month, the University of Michigan Law School’s general counsel advised other schools to follow the Thomas Jefferson playbook if they wanted to make an end run around the Students for Fair Admissions decision and continue admitting students based on race to artificially balance the racial makeup of each class.

That would be a mistake. Whether it’s out in the open or hidden behind proxies, racial discrimination is unconstitutional. PLF took the fight against proxy discrimination at Thomas Jefferson all the way to the Supreme Court last month with a petition asking the Court to end this practice once and for all. By the time the Court decides whether it will hear our case, the next round of college admissions letters will have gone out and it will be clear which schools are using racial identity essay questions as a new tool for the same old discrimination.

As law professor and PLF trustee John Yoo put it: “Suppose Harvard asked these questions and, magically, the racial composition of the freshman class is within three to four points of what it was before the essay questions. I don’t think the courts are going to be fooled by innocuous-seeming essay questions which are used as a pretext by the colleges.”

For more on race-based admissions and what comes next, see this FAQ from my colleagues Alison Somin and Ethan Blevin.