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[quote=Exlawdean]In the aftermath of the Students for Fair Admissions decision, I thought it might help if I made some comments that put it into context.

First, although the opinion is literally about undergraduate admissions (at Harvard and at UNC) I don't know anyone who thinks this decision does not apply to law school admissions programs.

Second, this decision has been anticipated, at a general level, by most law school admissions offices, ever since the Supreme Court agreed to take the case.

Third, at the very end of his opinion, Justice Roberts laid out what the majority wants. Race can be taken into account at an individual level, if it directly connects to character traits and abilities in the individual that the school values. It is worth quoting this short section:

[i]"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. . . . A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university.  In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race."[/i]

Fourth, the majority claimed to be irked by the inability to measure the benefits from diversity, the central rationale for the predominant system that the majority struck down. No one that I have talked to will hazard a guess whether the new, retail approach to considering race that Roberts' opinion describes in the quoted language above, will need to produce [i]measurable[/i] benefits in order to survive.

Fifth, I have heard suggestions that admissions offices can just move to using wholesale proxies for race -- think of preferring people from certain zip codes -- and avoid the thrust of the majority opinion. I think that is wrong. Such a wholesale approach will likely fall quickly if challenged in court. The quoted language, and other language from section VI of the majority opinion, rejects such an attempted work-around, IMO.

Sixth, re-configuring the admissions process to conform to Roberts' opinion can be done, but it will be expensive. Producing the tailoring that Roberts demands will likely mean hiring additional admissions officers. There are other possible responses, but I won't go into them here.

That's all, for now. Have a great 4th.

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