College Admissions After SFFA

[Music]

 

Sam Fendler:  Hello, everyone, and welcome to this Federalist Society virtual event. My name is Sam Fendler, and I'm an assistant director of practice groups with The Federalist Society. Today we're excited to host "College Admissions After SFFA." We're joined today by Art Coleman, Corey Liu, and Will Trachman. Unfortunately, Professor Amanda Shanor will not be able to join us today as she's dealing with a family emergency. We send her our thoughts and prayers. Our moderator today is Ken Marcus. Ken is the founder and chairman of the Brandeis Center for Human Rights Under Law and former assistant U. S. Secretary of Education for civil rights. Ken also serves as the Executive Committee Chairman of The Federalist Society's Civil Rights Practice Group, and we thank him for his service in that capacity.

 

If you'd like to learn more about today's speakers, their full bios can be viewed on our website, FedSoc.org. After our speakers give their opening remarks, we will turn to you, the audience, for questions. If you have a question, please enter it into the Q&A function at the bottom of your Zoom window, and we'll do our best to answer as many questions as we can. Finally, I'll note that, as always, all expressions of opinion today are those of our guest speakers and not The Federalist Society. With that, Ken, thank you very much for joining us today, sir and the floor is yours.

 

Hon. Kenneth L. Marcus:  Sam, thank you for that introduction. And thank you also for all the work that you have done in putting this together. I'm very pleased that The Federalist Society is putting together this very timely event. On behalf of the Civil Rights Practice Group, I welcome both our speakers and our audience members. Today is timely because on this day around the country, countless high school students are hitting send on early action and early decision applications that are due November 1. This is the first wave of applications that is being submitted in the aftermath of the U. S. Supreme Court's decision in Students for Fair Admissions, a lawsuit against both Harvard University and the University of North Carolina. And so this is the first wave of applicants for whom the decision will provide a basis for action by colleges and universities. We all know that this was a major decision, but what it will mean specifically for college admissions in the future, what it should mean as well, is a question for which I would say that expert opinion would be welcome.

 

For those who welcome the decision, there remain questions about how scrupulously it will be followed by colleges and universities, and whether racial preferences truly will be wrung out of the admissions process. Will preferences be pursued indirectly that cannot be pursued directly? Will essays or other sorts of questions be used in lieu of direct use of race? For those who do not welcome the decision, there are questions as to the extent to which diversity, however defined, will be pursued by colleges, given the decision that we have just seen. Diversity, of course, is a term that can be defined in various ways. Some people use it to refer to the racial composition of the entering student body, other to a multifactored set of criteria which may or may not include race, together with such things as geographical location, state citizenship, abilities in sports, art, or other areas, and perhaps even the disadvantages which one has overcome. So there are many questions, even within higher education, about the future of this case. Will it be followed and how will it be followed and will it be followed only in the letter or also in the spirit? And what do we make of this?

 

As Sam Fendler mentioned, one of our speakers unfortunately was unable to attend due to last-minute circumstances, but we are grateful for the speakers who are here. Will Trachman is well known to many in The Federalist Society, General Counsel of Mountain States Legal. He is also former Deputy Assistant Secretary for Policy at the U. S. Department of Education's, Office for Civil Rights, or OCR. I had the pleasure and honor of serving with Will at the Office for Civil Rights. Art Coleman is actually another alumnus of the Office for Civil Rights, although I did not have the pleasure of working with him there as he served during a different administration. He headed up policy and developed during his tenure during the Clinton administration a reputation as one of that administration's top experts on policy issues, especially with respect to higher education, a reputation that he has further advanced during his subsequent career at Education Counsel and as someone who perhaps knows about as much about the legal and policy aspect of admissions as anyone whom I know. Corey Liu, a distinguished attorney, former Assistant General Counsel to Governor Greg Abbot of Texas. He is active in this space and I would say is one of the emerging leading voices on the question of racial preferences in higher education. The fact that he also has a Harvard background also perhaps gives particular pertinence to his participation. We welcome you all. For those in the audience, please feel free to enter questions in the Q&A section as they come to you. At this point, we will welcome Will Trachman to speak.

 

William E. Trachman:  Thanks, Ken. I'm going to ground the Harvard and UNC opinions first and then talk a little about who the Court was writing for in its majority and dissenting opinions. And then before I hand it off to Art to talk about some of the immediate implications, I'm going to talk about an OCR letter, a letter that the Office for Civil Rights and the Department of Education issued on August 14 purporting to interpret the SFFA decision as to what it means and how it will apply to universities going forward.

 

And so let's start with just grounding. Over four decades ago, in the 1970s, the U. S. Supreme Court, in a very split opinion in a case called Bakke, rejected the idea that schools could simply discriminate based on race with no other goal in order to affect the demographics of their student body. But they could consider diversity as a compelling interest as to why they might want to use race as one factor in the admissions process. And that regime held up for decades. In 2003, it was reaffirmed in a case called Grutter, and then in 2016, it was once again echoed in a case called Fisher. So the Harvard and UNC cases came to the Court against that backdrop, both of the schools are bound by the same laws that the UC Davis was in Bakke. Title Six applies to Harvard even as a private school. So that means that schools that accept federal funds like Harvard can't discriminate on the basis of race. And of course, the University of North Carolina is a public school, so it also can't discriminate based on race under the equal protection clause of the Fourteenth amendment. And the Court decided in a 6-3 decision in June that admission system offering a preference based on race is both unconstitutional as it goes to UNC and also a violation of Title Six as it goes to Harvard.

 

The oral argument in the case gave a lot of the insight into what the justices were thinking as to also to what the school's defense was going to be. Harvard said that their racial preferences were just a minor factor, similar to something that they might give an oboe player. But Chief Justice Roberts forcefully rejected that line of argument. And his classic line that I think will echo beyond the oral argument was, "We didn't fight a civil war over oboe players." The opinion itself, after it came down, was very broad. So even though it's just technically about UNC and Harvard, it talks about race in very broad terms. For instance, it notes that the schools', both Harvard and UNC, use of broad racial categories was arbitrary. So putting all applicants into six buckets, Asian, Native Hawaiian or pacific islander, Hispanic, white, African American, or Native Americans, that those buckets themselves were arbitrary and not significantly contributing to diversity. They were especially prone to criticism on the diversity issue. And one example that the Court used was that under this rationale, it would technically be better to have 15 percent of students from one country like Mexico, as opposed to 10 percent of students from a wide range of Latin American countries. It would presumably be more diverse than having 15 percent. But because of the buckets defining individuals based on race that the schools were getting it backwards and they weren't really interested in true diversity.

 

The Court also broadly held that race doesn't translate to diversity because a person's race doesn't determine their outlook in life, their experiences, their viewpoints, or their potential contributions to the student body. And in the broadest line in the opinion, Chief Justice Roberts wrote, "Eliminating race discrimination means eliminating all of it," and that line will certainly be quoted frequently. The Court also responded to some of the arguments in the dissent, which urged schools to maybe use a backdoor to consider race. And Chief Justice Roberts said it would be unwise to listen to the dissent in the opinion, and that if a school tries to do something that gets at race through a backdoor, through a proxy, that that would be just as unconstitutional or a violation of Title Six as the direct racial preference. So that certainly will come back in future cases.

 

There is one limited, I would say, carve out to the rule, although it's not truly a carve out. The Court says that you can ask applicants about their life experiences, and so you can ask them what challenges they've overcome in their life. And there's nothing wrong with an individual applicant saying, "I've overcome race discrimination based on my skin color," as part of their application. And that's still fine, that the decision doesn't prohibit that. But of course, many of the universities that read that line will say, "Well, there's something there that we can continue to use to affect diversity." Second, I want to talk about who the Court was writing for. This wasn't an opinion in a narrow area of law. This wasn't a maritime decision that will have minimal consequences on other cases going forward. The justices, when they were issuing their opinions, knew that they were writing with broad language, and they knew that that language would come back to them again and again. It's no mystery that a case of this nature that many have described as a blockbuster will be used in a number of different contexts.

 

So just since June 30, SFFA has been cited 110 times in different appellate briefs, including one of my own in an employment law case, and has been cited by courts 47 times already, just since the end of June. So you're talking about a watershed case that's already having an impact on the federal judiciary. It's also been applied in other contexts, like the federal contracting space, and I would expect it to be applied at least in the university scholarship context, just like Bakke before it was applied to achieve diversity through scholarships. Third, before I hand off to Art, I want to talk about some OCR guidance or guidance that issued from the Department of Education's Office for Civil Rights.

 

You heard that we have three alumni from that office on the call here today. So the Department of Education has a number of different divisions. One of those divisions is the Office for Civil Rights. That entity investigates and enforces a number of civil rights statutes, including Title Six, barring race discrimination by recipients of federal funds, and OCR issued guidance, as it is want to do, interpreting the Harvard and UNC decisions. And before that, it announced that it was the law in terms of its future guidance. Some non-government groups were saying, now that Harvard and UNC has been decided, schools can't collect racial data. And they were sending letters to school. And the Assistant Secretary for Civil Rights said, "You will know what UNC and Harvard mean when we tell you what they mean." And that happened on August 14.

 

That guidance says that the key moment in time after the SFFA decision is the decision on admission itself. But that doesn't include targeted outreach. So schools can still send mailers to potential students based on the race of that potential student. They can also do targeted recruitment, which means that even though they can't give a preference at the time of admission, they can spend their recruitment dollars on race. So that might mean spending a number of their recruitment dollars on college fairs in areas where they know that a nonwhite population is significant and perhaps overwhelming, and they can invest in targeted pathway programs. So that just means that before you go to college, there can be a pathway program, like a summer camp ahead of time, and that schools can continue to appeal to individuals for those programs based on race. And that schools can also tinker with their admissions mechanics.

 

So that includes changing their application fee status, their standardized testing requirements like SAT or ACT. They can change what they require for prerequisites, like not requiring calculus anymore, and they can change their early decision timelines, which Ken just alluded to is coming up very soon. And essentially what OCR's position is that schools can do everything but make a decision using race as a factor in the admissions office, that they can do this recruitment, this target outreach, these pathway programs that don't implicate SFFA. It's not sure what would happen if another school spent a hundred percent of their budget recruiting from heavily Caucasian areas. I think people would have a different feeling about that. But for the time being, OCR's definitive statement, or their purportedly definitive statement about the SFFA decision, is that schools can continue to consider race in these pre decisional aspects and that they can still try to achieve a diverse student body. So with that, let me turn it over to Art to talk more about the immediate implications of the decision.

 

Art Coleman:  Thanks, Will. And thanks, everyone for having me. I'll start by just recognizing that it's actually been four months and a day since the decision. For some of us, it feels like four years, given the amount of consequential impact of the Court's decision. I agree with Will on that front. And so what I want to do briefly is just reflect on the last four months and set the stage for where I think we are as a practical matter in the field of higher education enrollment decisions. Talking briefly about the initial confusion around the case, given some of the fine lines that the Chief Justice drew, then the challenge of navigating those fine lines and then thinking about the broader implications that Will just touched on briefly in terms of the department's guidance. The confusion, I think, was palpable because a lot of the rhetoric on the case in the immediate wake was, you saw headlines like "Affirmative Action is dead," or "You can no longer consider anything having to do with race in admissions." And as Will just suggested, that's I think, not true in a real sense.

 

I would argue, number one, we're not talking about affirmative action here. This is about the mission focused educational benefits of diversity, which is not that remedial corrective lens that typically accompanies a kind of affirmative action case. I think it's sort of notable that this decision -- the majority did not use the term affirmative action to describe the policies in play. More fundamentally, though, even as the Court was very clearly telling higher education, "You may no longer consider an applicant's racial status in the equation of holistic review as you are deciding who to admit and who not to admit." The Court said this, and I'm just going to quote this language because it's really important as we think about the blueprint for moving forward. "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. The touchstone of an individual's identity must be with respect to challenges vested, skills built or lessons learned, not the color of their skin."

 

So the practical reality as we're navigating this space now is colleges and universities are looking to see, number one, to ensure that they're not considering the fact of an applicant's racial identity. The fact that a student may be a student of color can no longer play a role in the admissions decision, while at the same time a student might say whether it's through an interview or through an essay answer, there's something about their background that leads them to have a particular viewpoint or perspective or interest that may be expressly associated with their racial identity. They can identify that. That's the point that I would say it's important for an institution to identify what is the quality that that is aligned to tied to your mission. A race neutral quality into which a student's racial identity may play, but again, not as to racial status, but as to their experience or perspective shaped by their lived experience. And so that's the fine line we're navigating. I think, beyond the question of admissions, the implications are -- there are many obviously unanswered questions.

 

We haven't had a lot of time to have much precedent in this arena. But I think there are some fairly good common-sense principles that are defining the space, some of which the Department of Education and Justice touched on. This first question on just the data in use. Again, the Court didn't discuss data in use, but I think there's a very clear recognition, and this is one line from the Department's guidance "In collecting and using data, institutions should ensure that the racial demographics of the applicant pool do not influence admissions decisions." I think that's a very clear import from the Court's opinion. So what you're going to see, I think with a vast majority of institutions where race may be a factor in some way in the experiential process moving forward, they're looking to create firewalls, to really establish the fact that no one involved in the admissions process itself, in the actual selection decisions, has an awareness of what that potentially evolving racial composition of the class looks like.

 

Will touched on recruitment and outreach, and I'll just say the broad points, I think, that the Department of Justice and Education raised are fine and valid. I think it's important to recognize that federal cases at the circuit level and at the district court level for years, I think consistent with some historical OCR guidance, have recognized that inclusive recruitment and outreach practices -- and that's actually a legal term of art -- are generally fine and actually don't even raise the spectra of discrimination because you're not in those kinds of practices where it's a question of where do I fund, where do I send recruiters, how do I target certain areas of the country or certain populations within certain areas? I think the question there is, how do I invest? It is not is there a particular individual benefit tied to some student and not others that could be tied to their racial status? And so that lens, as a broad proposition, has given courts the foundation to say, you can do a lot more with broad based, inclusive recruitment and outreach policies, even if there's some racial targeting in that mix, as long as you're not conferring that individual benefit to some students and not others.

 

I think the really big question that interestingly neither Department of Justice or Education has addressed in the wake of the decision is on financial aid and scholarships. And there is, I will say, a general view. I've seen it in lots of circles to say this was just an admissions case and it has no implications beyond admissions. I actually don't believe that. I actually think the implications are present. I don't think they're necessarily controlling in every case. But with respect to admissions, I think the simple question is if you as an institution were going to advance a race status conscious practice tomorrow, what would be your compelling interest? And this is where, just to circle back on the Court's ruling itself, even though the Court didn't, as SFFA had asked, expressly overrule its 45 years of precedent, it let Grutter and its progeny stay put, if you will in terms of actual precedent. I think it fundamentally eviscerated the holding of Grutter and its progeny around what were historically considered to be legitimate, compelling interests to advance the benefits of diversity, because it basically took those very interests that had been argued previously and prevailed and said with respect to Harvard and UNC, they were insufficiently concrete or coherent enough to justify this status consideration.

 

And so I think the challenge for institutions going forward in the immediate term this year, this cycle, is thinking through how you would and what authority on which you would base an articulable, compelling interest. And frankly, I think we have right now a blank slate, notwithstanding the fact that you've got the interesting footnote from the majority opening the door to interests that might be proffered by military institutions. And I think SFFA has already sued two of those. So that will be a set of questions about what this footnote opens the door to in terms of the legitimacy of differently framed or articulated compelling interests moving forward. But for the short term, I do think there are actually consequential implications even in the arena of financial aid, even as there are some creative ways you can design financial aid in this space. I'll stop there and pass the baton to Cory.

 

Cory R. Liu: Thank you. Well, one year ago exactly, actually, I was in D. C. at the steps of the Supreme Court, along with other Asian Americans who were disturbed by the facts of what had come out at Harvard in terms of how they were treating Asians in the admissions process. And the oral argument was on Halloween. And so here we are a year later, and I think for many of us, it finally validated kind of our worst fears about how Asians were being viewed and treated but had been denied by proponents of these policies by some courts that hadn't really paid attention to it and given Asian Americans the attention that they deserved. And so this case finally brought that to the forefront. Reading the Court's opinion, I think it did -- Art said it eviscerated the previous policy, and I think it certainly fundamentally changed the way college admissions will work.

 

Part of the Court -- the majority's rationale was that these racial categories are over broad in some ways, under inclusive in some ways. They're very arbitrary. Why are all Asian Americans lumped together? People from China and India, they don't necessarily look alike or speak the same language, but in America, for some reason, we group them together. Why does Hispanic include people who might be from Spain, who are Caucasian? How does someone who's Middle Eastern identify? That came up at the oral argument. And the attorney for University of North Carolina didn't really have an answer for even just how is that person supposed to be classified? And then the Court also noted that using these categories, there were harms being imposed. The schools kept saying, your race can only help you it can never hurt you, but you're helping some groups. That means other people are being held to a higher standard for admission and there's differential treatment based on race and that is effectively a penalty for those students.

 

And when the schools are arguing that we need these policies to keep the proportions and representation of different groups in our class, that's an implicit admission that these policies are doing something, they are having an effect. And that means some students are getting in because of their race, and other students, therefore, are being excluded and being treated differently. And the Court also noted this idea of looking at the numbers and considering representation that that's effectively racial balancing. And so after Grutter there was this sort of tension, right? Well, you can consider race to achieve certain goals, but then what are those goals? Right? You can't have a quota because the Supreme Court's made clear that having numerical goals is unconstitutional. But then in Grutter still seemed to open some room for achieving some sorts of numerical goals as long as the number isn't stated. And so that was always a tension there.

 

And the Fair Admissions decision makes pretty clear that that's a problem with how these programs are operating. And in the case of Harvard, I mean, it was pretty clear they had these one pagers they were using to track the demographics of the class throughout the admission cycle. At the very end, when they were shaving off the last few students from the class, they were using race. And the numbers showed the proportion of the class of different racial groups stayed roughly the same year after year. So it looked like racial balancing, which arguably, that went beyond what Grutter allowed. And yet because of this sort of idea that well, you can still try to achieve certain targets like critical mass terms like that, that it was effectively acting like a quota. And so the Court has pretty much made pretty clear that using these racial categories, it's too crude. You're not really trying to get to know someone as an individual, right? You're just sorting them into a category. And I think even the justices who believe these policies are constitutional had to acknowledge that. And so I think using those categories and tracking those numbers is pretty clearly not going to be something that can continue after Grutter. Did they overturn Grutter or was it just that Grutter had reached that point where they said we expect after a certain amount of time these policies will no longer be needed and they can't in fact constitutionally continue forever?

 

I think either way, the use of those racial categories is no longer permissible. And I think we've heard reports that schools are starting to move away from that which is heartening. So what do we have after that now? There have been concerns raised to what will schools do to try to get at similar goals and are any of those arguably discriminatory? I think the answer to that question, like in any civil rights case, turns on the facts of the particular case. We have the Arlington Heights test for whether a facially race neutral policy is nonetheless motivated by discriminatory purpose and has a discriminatory effect. And if so, then it will be treated as unlawful and discriminatory. And so I think, as in many other areas of civil rights litigation, that will be a question that can be raised and will turn on the facts of the case. I think we know the Coalition for TJ case raises one such claim, where a public school, a magnet school, had changed its admissions program, and the result was a significant drop in the number of Asians. And there was evidence of communications between people involved in the decision that talked about Asians and how this is going to look and the number of Asians that are going to be at the class. So that could be evidence of discriminatory purpose and so those types of claims will be able to continue to be litigated.

 

And I think certainly, as Art mentioned, there's room for diversity programs that don't look at race or only consider people as individuals. And to the extent they raise their identity as a factor, that is one thing the Court may look at. But in getting to know that person as an individual -- and in doing so, that may be something closer to part of what the Grutter decision was actually trying to say in terms of just making race a small factor as opposed to really just trying to get the numbers to look a certain way at the end of the year. So we're going through an admissions cycle, as Ken mentioned. Students are applying for college right now, so it remains to be seen what the results are and how this process will occur. But I think the thing I want to close on is just the message of the Fair Admissions case and hopefully that will be something that as time moves on and the people who are directly involved in this move on and the next generation comes of younger people that we can look at this and acknowledge that this is not a conservative or liberal issue. That even though in the course of the litigation there were statements that were made by the universities almost saying who are these Asians? They don't exist, right. None of them testified in court, but that there really have been a lot of Asian Americans who felt that these policies did not treat them fairly, that they weren't being looked at as individuals, that there was this sense of whether you call it fear or resentment or just that we don't want too many Asians. They're taking all these tests and things like that and they would make up too much of the class, and nobody would like that. But those fears, they're still there. They were there for many years as the number of Asians were rising.

 

And even after this opinion, of course the same motivations still exist. And an opinion is just -- a law is just a law on the books and an opinion is just an opinion on the books. But what really matters is having people respect and internalize it. And I would say to the litigants who were on the other side of this case, I would hope that they would take away from this case some appreciation for the perspective of folks who maybe hadn't really been included in the discussion before, and that if you're going to fight for all people of color, all racial minorities, for genuine equality and inclusiveness, that you have to be able to put yourselves in the shoes of other people, too. And it can't just be telling this or that particular group's story. If you look at the dissenting opinions, there's not really much of an attempt to put themselves in the shoes of Asian Americans. I would hope once the immediate aftermath of the litigation is in the history books and we're able to look at it more objectively, that we could realize that there was a real story to be told here, that there were really people who felt like they were -- policies and that nobody was recognizing it until finally the Supreme Court made this decision and that whatever policies we come up with going forward have to be genuinely inclusive and treat all people equally.

 

Hon. Kenneth L. Marcus:  Thank you, Cory. And thank you all. I have to apologize that I lost connection for a portion of two of the panelist's talks but heard enough to realize that we heard very helpful insights from all three. I have a question or two, and I see that audience members have already put some questions in the chat. But before we turn to questions, if any of the panelists have very briefly any thoughts they wish to offer in response to any of the other panelists, we could take that up.

 

William E. Trachman:  Just a couple of quick points. One, it seems like we have universal agreement that this was not just about what UNC and Harvard were doing. This wasn't just that they were doing diversity wrong or racial preferences wrong. That this decision applies to every public school and every school that accepts federal funds in the country, and that there is a duty to avoid racial preferences in this admission cycle. There's no all-deliberate speed type phrasing in the opinion that this opinion affects immediately all those schools that would otherwise rely on Grutter, Fisher, or Bakke in order to create educational diversity.

 

Second, I want to mention that there are cases in response to something that Art mentioned that do talk about correcting disparities still being discriminatory. So in an employment law case called Ricci, the Supreme Court held that even an employer's efforts to correct a racial disparity was itself a race-based decision. And in a case called Manhart, which was most recently cited in the Bostock opinion, the Supreme Court held that an employer's efforts to require women to pay more into a pension fund was itself sex-based discrimination, even though the reasoning for that was that women live longer than men. And so at the top level, the equality evened out. And so even when you have these disparity correction programs, those still count as discriminatory.

 

Hon. Kenneth L. Marcus:  I don't know if Art Coleman wishes to respond.

 

Art Coleman:  Sorry. I was on mute. I think the only thing I would just elevate going actually to a point that Cory made because he used the Court's language which really characterized the processes as a classification based on race. And I will say, yeah, that's now the way we are constructing these policies after the fact. But I think understanding holistic review in its sort of best, most authentic self, and I'm even looking at language from the UNC record right now that emphasizes that there is actually no check the box thinking. It's actually a very comprehensive individualized review. I think probably higher education has not been transparent enough about what it does and how it does it. And I hope this moment in time where we're now navigating the fine lines between the prohibited status, but the ability to consider an applicant's racial experience will lead us to do a better job of talking about what that holistic review in its authentic fundamental perspective on individual applicants looks like. Because I think there's been a lot of mythology about the kind of mindless check the box application of a racial status that I think just in my experience has not been typically the case.

 

Hon. Kenneth L. Marcus:  Okay. So here's a question that I have. A couple of our speakers have either questioned whether Grutter was overturned or stated more clearly that it was not. We know that the courts will likely soon take up pending cases regarding the use of racial preferences by service academies such as West Point and the Naval Academy. Putting those aside, do the panelists -- and I'll ask first, Art, do you see a prospect of colleges or universities trying to proffer alternative justifications for the use of racial preferences? That is to say, do you foresee that there are colleges or universities who are saying, look, Grutter wasn't exactly overturned. We won't do what Harvard did. We won't do what UNC did. We're not service academies. But there may be other justifications for the voluntary use of race in admissions and if so, what sort of justifications do you see them potentially proffering?

 

Art Coleman:  So it's a really good question, and I think it's a question really for the mid and longer term in terms of potential legal strategies that are out there. I would actually say, I think, the footnote four of the opinion which opens the door to the military academy exception. I'm struck by the hook for that footnote. And the hook for that footnote was the fact that the Solicitor General spent the vast majority of her time making that argument. I think fundamentally to try to get the Court to recognize the broad power of diversity and how it just played in a military context. The Courts saying here, we didn't get briefed on the issue. We're not addressing the issue here. For me, that opens the door to the question of what are the other potentially compelling interests that would be more concrete or more coherent in a Court's view that would meet a threshold test? And I would say because -- and I'm struck by this -- the fact that the Court did not take SFFA up on the overall decades of precedent, but left that precedent very expressly, saying, we are following precedent.

 

And I dispute that analysis. I don't think you can really read the opinion and say you're following precedent, but that's my construction of the Court's opinion. The Court is saying, we followed precedent, and this result follows as a consequence. With that conclusion, the technical parameters of the Grutter opinion are still viable. That is, there's at least theoretically, some compelling interest and then some narrow tailoring design that might be distinguishable from the Harvard and UNC facts. I think that's absolutely an avenue that will get more attention, I think, potentially even beyond the military context. The one arena that strikes me as among the most intuitively compelling, even for diversity cynics, is the field of medicine and admission to medical schools. When you see the kind of health care disparities and the kind of data that exists there, I think there are potentially other ways to craft that interest. So, long story short, I think this is going to be an area for litigation in the future as well.

 

Hon. Kenneth L. Marcus:  Interesting. Do either of the other panelists have anything to add to that question?

 

William E. Trachman:  Well, I actually think it'll go the other direction. I think the question is whether national security will survive as a compelling interest to engage in race discrimination. And as I made in my second point, the Court knew what it was doing when it was crafting this broad language about the arbitrariness of racial categories and how your race is not tied into your experiences, your outlook, your viewpoints. So I would caution schools against underreading that sort of broad language, which is going to come back again and again for any school that tries to say, well, we've got a different way of doing racial preferences that might survive muster. Particularly because you can bring a lawsuit under 1983 for equal protection violations and under Title Six, there's a private right of action. So any school that hopes to do this is incurring tremendous legal exposure by saying, we think that we found a way that we might escape SFFA.

 

Hon. Kenneth L. Marcus:  All right. I'll turn to the questions. Devon Westhill asked a question that's actually similar to what I would have asked. He asks whether the panelists believe the Court's decision leaves room, as the Biden administration indicates, for schools to consider race during the admissions process, broadly speaking, such as during recruitment. In other words, is the Fourteenth Amendment ban on considering race directed only at the decision point?

 

William E. Trachman:  There are some areas where it feels really intuitive that a school ought to be able to do something like going to a college fair in an inner city in order to recruit and make it known that Harvard is accepting applications and UNC is accepting applications. On the other hand, there's something that's intuitively wrong about saying, well, what if a school offers fee waivers at these college fairs, or for every person who fits one of these racial pockets, even though a fee waiver isn't the same thing as an admissions decision? And of course, you could envision preferences for zip codes that are designed to target race as a direct proxy, and so you might end up sweeping in some Caucasians as part of a zip code preference, but the end result is to gerrymander your racial numbers, and I think all of those are going to be highly questionable. Again, the Ricci and Manhart cases identify these disparity correction programs as themselves based on race. And of course, there's a pending cert petition in the Coalition for TJ case, which is a K-12 case, about whether the Thomas Jefferson School in Virginia could change its admissions program in order to change its demographic numbers. So I think they're all very questionable after SFFA.

 

Cory R. Liu:  Well, I think it would depend on the facts of the case. As I mentioned, as all discrimination claims, you look at the intent, what's the effect? You could see how such an effort could be construed if there's other evidence of discrimination. So, for example, in the Harvard case, there was evidence that Harvard did have a different threshold for white students to be invited to apply to Harvard who are from what they called sparse countries, basically underrepresented states, smaller states with less competitive applicants, a different threshold for white applicants than Asian applicants. And it was actually -- they, in a way, lowered the standard for what we had to get on the PSAT to get the invitation. And then you combined that with actual -- all the other factors that were going on that made it harder for Asian students to get in than white students, the different standards being applied and all of that. You could see how that piece of evidence really could strengthen the case of discrimination.

 

On the other hand, if it actually turned out that there was genuinely no effect at all to the applicant, would an allegedly aggrieved plaintiff have a harm to plead? Maybe not, and perhaps if it genuinely looked like it was all an effort to create an appearance but at the end of the day, the minority students they were recruiting either were rejected because they didn't meet the standards or because they were so outstanding that they went to some other school and it didn't have any effect on the number at all, then maybe in that circumstance it would be harder to prove discrimination. So it probably just would depend on the facts.

 

Hon. Kenneth L. Marcus:  Okay. Thank you. So we've asked for questions, but we have some people who, instead of asking questions in the Q&A box, are just gratuitously filling up the Q&A box with compliments for the panelists. We discourage that. Questions only, please. These panelists know they're terrific, but I nevertheless share the sentiment. We've gotten some questions asking whether the results of this really will be to eliminate racial preferences, or whether it's merely going to cause the racial preferences to continue underground through the essays based perhaps on the language that Art Coleman quoted from the opinion. Have we really changed the way that universities will behave? Or are they just going to do the same behavior but in a more covert way?

 

Art Coleman:  I'll take a stab at that because this is the world I've been living for the last four months. I see no indication that any institutions are not taking this incredibly seriously and working very hard both to invest around policy designs that tow this fine line between prohibited status but permissive ability to think about an applicant's racial experience that may be tied to valued qualities and figure out literally how you are training staff to understand. An applicant may say anything. They may disclose lots of information about the background and how you, in essence, don't let racial status in and of itself influence the decision in any way. There's an awful lot of time and effort being invested in policy development, in training protocols and training materials, in navigating technology platforms to make sure that admissions readers are actually not aware of the racial status of an applicant, even though that data has come in on a certain platform. So I think there is an awful lot of seriousness taken by higher education leaders to make sure they are following the line of the Supreme Court, both with respect to what's prohibited and what's permissible through the front door of the Chief Justice's opinion.

 

Hon. Kenneth L. Marcus:   Thank you, Art. So a couple of us have mentioned that there are cases coming up involving the service Academy's, West Point Naval Academy. One of our questioners just asks straight out, "Please announce what the decision will be in those cases."
What's your prediction?

 

William E. Trachman:  So I've read the complaint in the West Point Academy lawsuit, and it's predictable. So footnote four, which Art alluded to in the SFFA decision, doesn't say the military academies are protected. It says, "They are not here before us, and we aren't deciding whether or not this opinion applies to them." So the schools will absolutely say, "Well, if this were an easy case, they wouldn't have that footnote because whatever they announced in SFFA must not have obviously implicated the military academies, otherwise that footnote wouldn't exist." And then the plaintiffs are saying all of the analytical reasoning underlying SFFA applies just the same to the military academies. Racial categories being arbitrary, race not being the quintessential part of who you are, the idea that diversity means more than skin color and in fact could mean that you have to ignore race in many ways. Again, this goes back to the point that the Court was writing for the future just as much as writing for the present. And so I see a world, especially since there's no end game -- these military academies are promising to have race in the future and forever. And so that is going to irritate, I think, the Supreme Court, if it ever gets to that level.

 

Hon. Kenneth L. Marcus:  If nothing else on that, we have another question about the implications of this decision for race-based scholarships and other financial -- anyone has a guess or analysis of the implications?

 

Art Coleman:  So I addressed that briefly in my comments. I actually think the practical reality for institutions at this moment in time, even though the Court technically did not address financial aid and scholarships. The first question, if you're going to sustain a race status conscious financial aid policy, the first question is going to be what's your compelling interest? And that's the question that I think where I said the Court had basically eviscerated decades of precedent. We are without a Supreme Court recognized set of compelling interests that I think could justify at the moment those particular practices. And so it's a practice that I would characterize as exceptionally high risk at the moment. Which is why I think you see so many institutions doing one of two things. Either -- most often, redesigning aid around the student experience that may be tied to race through legitimately, legally race neutral strategies tied to those diversity goals. By the way, diversity goals that this Supreme Court said were commendable goals, just not sufficiently concrete to justify that race status consideration. And then there's some creative practices I think you can do, particularly with privately endowed aid, that ultimately result in decision making that is not only race neutral but race blind, even if you've got funds coming from a donor who said, I want dollars going to Hispanic students as part of a big pool. So I think there are some avenues to navigate, but I think for the vast majority of institutions, you've got serious attention on financial aid and scholarships, just as you have serious attention on admissions.

 

Hon. Kenneth L. Marcus:  Good. So we have about six minutes left, so I'm going to ask a question of Art and Will. We have a basic difference in perspective in this panel, which is that the two of you are policy people, whereas I came up in OCR through the enforcement side. I'm also going to claim Cory for enforcement because he's a litigator. So I think that's a kindred spirit. You talked about policy guidance, especially you, Will, from OCR. But let me suppose that you went to the dark side, either one of you, and were in enforcement, and you were asked -- sometimes a department will follow up a major decision, not just with guidance, but it might also with a compliance review initiative. If you were asked to design such a thing, would you push back and say, it's not appropriate now? Would you say, "Sure. Yeah. There are real questions about compliance in the field, and I would like to look at it." What do you think OCR should be doing? Should it be doing proactive enforcement work pursuant to this decision? And if so, what would it look like?

 

William E. Trachman:  Should or will?

 

Hon. Kenneth L. Marcus:  Either way. 

 

William E. Trachman:  Well, I think it should. I think the question is whether it will. I was somewhat encouraged by the August 14 guidance because it didn't say this was a decision just about Harvard and UNC, they did it wrong. If you had a smaller factor or if you had a better and more concrete diversity interest, you could probably get away with still keeping an affirmative action program. It acknowledged that this decision applies throughout the country for recipients of federal funds. But I think what will happen is that OCR will accept the complaints and open the complaints and sit on them for a long time before investigating. Then investigations will take a long time, and notoriously motives are hard to determine as to whether a school is embracing new application questions about what struggles and life obstacles you've had to overcome based on race or not. And so I don't expect them to announce an aggressive national compliance initiative, at least under this administration after SFFA.

 

Hon. Kenneth L. Marcus:  Art, do you want the last word on this?

 

Art Coleman:  Ken, you did send me back to the dark side, and now I'm going back through the cobwebs of actually being involved in some of these decisions about when I was at OCR, what we would do proactively. And I would say if there was an emerging pattern of flagrant violation or abuse of this court's opinion, then I would expect that could be an arena for OCR to land. But I just put back on my old hat, as it were, thinking through what were the factors that drove us, and it was to find those areas that were not already the subject of significant complaints coming to OCR for which we thought there were material gaps in equal opportunity affecting students. And I will just tell you, just based on my limited window in the past four months, this just doesn't strike me as necessarily rising to that level. But these are actually really early days. I think we're going to have to wait and see how some of this lands before we know more.

 

Hon. Kenneth L. Marcus:  Excellent. I said Art had the last word, but it does look like we have just a moment left. If people have a quick response to this question: we've been asked by a couple of people about implement [Inaudible 55:03] law schools or law firms. Any come to mind? Will?

 

William E. Trachman:  Yes. Absolutely. So attorneys general have issued competing letters. Several democratic attorneys general have said this doesn't apply to employer decisions involving DEI. My own attorney general in Colorado issued an opinion of that sort just a few weeks ago. But I think a five red state attorney general letter before that went out saying, here are a bunch of law firm programs that provide either summer associate jobs or scholarships based on race and those are going to be subject to 42 U.S.C. § 1981, which bars race discrimination in contracting. And so the same principles that apply in terms of diversity not being a catch all defense to race discrimination are going to run through those cases as well.

 

Hon. Kenneth L. Marcus:  Thank you. Well, gentlemen, on behalf of the civil rights practice group, I want to thank you. We are grateful for the expertise that you have shared with us. Thank you for your time. I appreciate the audience participation. We had far more questions waiting for us than we were able to reach, so I apologize to those questioners that we weren't able to address, but I thank you all for your participation and I hand the microphone back to Sam Fendler.

 

Sam Fendler:  Well, Ken, thank you very much for facilitating such a wonderful conversation and I too, on behalf of The Federalist Society, want to thank our panelists for joining us today and one last communication of our thoughts and prayers to Professor Amanda Shanor. I also want to take the opportunity to thank our audience for joining us. We greatly appreciate your participation. Please check out our website, FedSoc.org or follow us on all major social media platforms @FedSoc to stay up to date with announcements and upcoming webinars. Thank you all once more for tuning in and we are adjourned.