With Race Gone as a Factor in Admissions, Is Student Athlete Status Next? 

Sep 8, 2023

By Christopher Wilkinson and Jeremy Wright

The U.S. Supreme Court’s recent decision on universities’ affirmative action policies, Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA), has garnered significant political, cultural, and media attention. The overall focus has centered on the decision’s determination that  race can no longer be used as a factor to achieve diversity in university admissions. 143 S. Ct. 2141 (2023). Less attention has been paid to the manner in which the winding trials and ensuing appellate process lifted the veil on college admissions and how various factors other than race, including legacy and athletic ability, tip the scales in admissions decisions. While the majority decision focused on the use of race in admissions, various justices on the Supreme Court made sweeping criticisms of the overall admissions process in its current form. This may present opportunities for claimants to challenge any factor related to college admissions that those claimants see as illegitimate, including factors geared towards admitting student athletes.

The Supreme Court’s Admission Decision and Holding

At issue in the June 29, 2023, decision were the admissions policies of Harvard College and the University of North Carolina (UNC). The Court held that the use of race as a factor in the admissions system of UNC, a public institution, violated the Fourteenth Amendment’s Equal Protection Clause. Harvard was found to have similarly violated Title VI of the Civil Rights Act of 1964, which forbids the use of race by federally funded institutions. In each case, the Court framed its analysis by identifying the “core purpose” of the Equal Protection Clause as the elimination of “all governmentally imposed discrimination based on race.” On that understanding of the Equal Protection Clause, the Court reasoned that any governmental consideration of race must satisfy strict scrutiny, which asks whether certain state actions (1) serve a compelling governmental purpose, and (2) are narrowly tailored to achieve that interest. The Court held that the universities’ admissions practices had “fallen short” of each requirement. 

In particular, the Court looked dimly on the justifications presented by the universities for their use of race as a factor in admissions. In arguing for their admissions practices, Harvard and UNC had cited the various educational benefits a diverse student body brings to an institution, such as preparing students to enter a pluralistic society and enriching students’ learning experiences. The Court stated that although these were “commendable goals,” such objectives lacked measurability and were not “sufficiently coherent for purposes of strict scrutiny.” The Court also found that these justifications amounted to impermissible race stereotyping in that they presumed some amount of like-mindedness amongst individuals of the same race. Finally, the Court took issue with the lack of any sunsetting plans by the universities. Citing Grutter v. Bollinger, the 2003 case that had upheld holistic considerations of race in admissions process, the Court explained that college affirmative action had only survived previous constitutional review because it had a “logical endpoint.” The Court held that, in failing to plan for such policies to eventually end, the universities had failed Grutter’s direction that such practices must be limited in temporal scope.

Takeaways and Overall Reactions to the Supreme Court’s Decision

The Supreme Court majority, concurring, and dissenting opinions totaled 237 pages; various takeaways are implicated in the separate opinions. The majority opinion was careful to make clear that it decided the precise issue of whether the Constitution or Title VI allowed for the use of race as a factor in university admissions. On this question, Chief Justice Roberts’s opinion disallowed the practice as applied by Harvard and UNC but provided a carve-out which allows universities to consider an applicant’s representation of how race has affected his or her life through “discrimination, inspiration or otherwise.” Despite significant concerns about the legal impact of the Court’s decision on the broader use of affirmative action in federal contracting programs and employers’ diversity programs, the majority opinion stuck to the narrow issue presented.  Indeed, as most universities—including Harvard and UNC—receive federal funding for research and other activities, they perhaps face dueling incentives in the form of not considering broad diversity goals in terms of the admissions process while, at the same time, representing to the federal government that they are taking affirmative action in employment because of their federal contracting obligations. 

Other Admissions Considerations Including College Athletics

Chief Justice Roberts’s majority opinion did not openly criticize other admission criteria such as legacy status or athletic achievement. Rather, in passing, the majority opinion noted that Harvard used these factors in its so-called “lop” stage as part of its final decision-making process, but Roberts went no further in criticizing them.

However, Justice Gorsuch, in his concurrence and during oral argument, took aim at these factors. During oral argument in October, Justice Gorsuch suggested that the universities eliminate their practice of granting applicants with athletic ability an admissions edge. Justice Gorsuch followed up this suggestion in his concurrence by emphasizing evidence “that Harvard could nearly replicate the current racial composition of its student body without resorting to race-based practices if it: (1) provided socioeconomically disadvantaged applicants just half of the tip it gives recruited athletes; and (2) eliminated tips for the children of donors, alumni, and faculty.”

This line of disapproval—that admissions practices too heavily weight athletic ability and legacy status—has gained traction across ideological lines since the decision’s release, including from those disheartened by the SFFA decision. The Boston Globe’s recent article “From Athletes to Clarinetists: Who Gets Preferential Treatment in Top College Admissions?” analyzed post-SFFA criticisms from education reformers and civil rights activists and drew special attention to the “substantially weaker” profile of accepted athletic applicants at Harvard. “[A] typical applicant with only a 1 percent chance of admission,” it noted when discussing the impact of athletic ability on admissions, “would see his admission likelihood increase to 98 percent if he were a recruited athlete.” Similarly, in arguing in its piece, “Affirmative Action for White College Applicants Is Still Here,” the Vox noted that “being an athlete is the strongest admissions preference of all” and that such preferences benefit “disproportionately white, wealthy, and suburban” applicants. The UCLA Law Review, in “Race and Privilege Misunderstood: Athletics and Selective College Admissions in (and Beyond) the Supreme Court Affirmative Action Cases,” also recently published a piece criticizing the use of athletics as an admissions factor.

How Higher Education Institutions May Respond to the Changed Political and Social Landscape

The zero-sum nature of admissions at primarily highly selective institutions, along with the open window into admissions presented by the litigation, has—in many ways—overshadowed the unequivocable fact that the Court’s decision does not immediately change current practices related to athletics admissions. Further, on its face, the use of athletic ability as a factor would not trigger strict scrutiny by a court because it is not a racial classification (although it is expected that the Court may look at whether policies that show a disparate racial effect run afoul of the Constitution and Title VI. However, universities and college athletic departments should be prepared for potential, possibly fast-approaching changes to how they are able select candidates.

Should athlete-based admissions practices be successfully challenged in the courts, or should schools succumb to public pressure to change such practices, college athletic departments will likely still have tools at their disposal for recruiting strong candidates. Although seemingly objective criteria such as grades and test scores may take a higher priority, the Court in SFFA did note that, within the context of disclosing one’s race in applications, individuals would still be able to provide personal narratives of how their race was important to their personal development and individual growth. Athletes would, similarly, likely be entitled to discuss how their experience competing has developed them. Further, the SFFA decision, with its explicit focus on selection procedures, did not impact the ability of universities to engage in targeted recruitment and retention efforts. Similarly, college athletic departments would very likely be able to continue engaging in targeted recruitment and retention efforts for sought-after athletes, even if the admissions boost for athletes goes away. Still, the recent SFFA decision highlights the cultural landscape and breadth of opinions that these departments may soon need to carefully navigate.

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