This article was originally published on abajournal.com.
After last month’s U.S. Supreme Court opinion that found race-conscious university admissions decisions to be unconstitutional, the clock is ticking for law schools determining what to do when the new applications cycle begins in September.
Chief Justice John Roberts’ majority opinion in Students for Fair Admissions Inc. v. President and Fellows of Harvard College found that if applicants discuss how race affected their lives, including experiences that involve overcoming adversity or discrimination, universities can consider that for admissions purposes. But decisions must be based on the individual student’s experience and perseverance, not their race.
Harvard and the University of North Carolina were parties in the litigation. Both institutions allowed race to be considered in admissions, and the June 29 opinion reverses various landmark opinions on affirmative action in education. It also noted that consideration of race led to a decrease in Asian American admissions, which made race a “negative factor” for the group.
A day after the opinion was published, Stephen Miller, a former adviser in President Donald Trump’s administration and now president of America First Legal, sent letters to 200 law school deans stating that the organization would sue if they allowed “illegal and discriminatory practices to continue.”
Miller did not respond to ABA Journal interview requests.
“Every school will be under a microscope about what they are planning to do,” says Mark Alexander, dean of the Villanova University Charles Widger School of Law and president of the Association of American Law Schools.
“We all know the big picture, but the specifics of implementation are still being determined,” he adds.
The Augustinian Catholic university’s motto is “Veritas, Unitas, Caritas.” That means “Truth, Unity and Love,” and admissions policies will be based on the school’s values in a way that complies with the opinion, Alexander says.
“I am hearing people tell admissions offices that ‘whatever you do, you will be sued,” says Peter Lake, a professor at Stetson University College of Law and director of its Center for Excellence in Higher Education Law and Policy.
He refers to the opinion as “litigation bait,” and anticipates hundreds of lawsuits. Lake predicts the Supreme Court will likely leave many decisions to the federal circuits, much like what happened with the 1954 school desegregation case Brown v. Board of Education.