dotEDU Live: The Supreme Court’s Ruling on Race and Admissions


​​​​​​​​​​​​​​Aired July 7, 2023

The U.S. Supreme Court has released its long-awaited decision in Students for Fair Admissions (SFFA) v. Harvard and SFFA v. University of North Carolina–Chapel Hill, striking down colleges’ use of race-conscious admissions nationwide. Madelyn Wessel, senior counsel at Hogan Lovells, and Peter McDonough, vice president and general counsel at ACE, join Mushtaq Gunja to offer initial thoughts about the ruling and potential implications for students and higher education institutions while considering what all of this means for the future of diversity, access, and opportunity on campus and beyond.

Here are some of the links and references from this week’s show:

The SFFA V. Harvard and UNC Race in Admissions Cases: Reactions to the U.S. Supreme Court’s Ruling  
American Council on Education | July 6, 2023

Students for Fair Admissions, Inc. v. President and Fellows of Harvard College
U.S. Supreme Court | June 29, 2023

Supreme Court Strikes Down Race in Admissions Policies
American Council on Education | June 30, 2023

Transcript: Contingency Planning and Prep for a Post–Supreme Court Decision Landscape
American Council on Education | April 19, 2023

ACE Leads Nearly 40 Associations Urging the Supreme Court to Reaffirm the Legality and Value of Race-Conscious Admissions
American Council on Education | August 1, 2022

Affirmative Action Was Banned at Two Top Universities. They Say They Need It.
The New York Times (sub. req.) | Oct. 31, 2022

Without Affirmative Action, How Will Colleges Seek Racial Diversity?
The Washington Post (sub. req.) | July 5, 2023

Activists Spurred by Affirmative Action Ruling Challenge Legacy Admissions at Harvard
The Associated Press | July 3, 2023

Black Colleges Face Crunch as Supreme Court Ruling Drives Influx of Students
Bloomberg | July 5, 2023

Military Academies Exempt from Supreme Court’s Affirmative Action Ruling
The Wall Street Journal (sub. req.) | June 29, 2023


 Read this episode's transcript

Mushtaq Gunja: Welcome to dotEDU Live, the public policy podcast from the American Council on Education. I am your host this morning, Mushtaq Gunja. This is a very special episode of dotEDU Live. Regular listeners, viewers of this podcast know that this session is typically hosted by Jon Fansmith, Sarah Spreitzer. Usually we cover multiple goings-on in Washington. But in light of the Supreme Court's momentous decision last week, we decided to do a special show dedicated to admissions, college admissions, the court, and most importantly, what comes next for all of us. And to help us on this journey, we have two all-star guests, two people who have been involved in the legal fight around college admissions for years. So please help me welcome Madelyn Wessel and Peter McDonough.

Madelyn Wessel is senior counsel at the law firm of Hogan Lovells, where she practices higher ed law. Madelyn's former general counsel at Cornell University. And she helped write with Peter ACE's amicus brief in the recent UNC and Harvard cases. And Peter McDonough, probably no stranger to many of you, is ACE's general counsel. Peter was general counsel at Princeton and has been a higher ed lawyer for decades. We're blessed to have the two of you with us today because we have a lot to unpack.

Now, we invited some questions from listeners in advance. And boy, did all of you respond. We received almost 100 questions in advance and have tried to bucket some of them in some broad topics, and hope we can hit many of those topics now. But if you have questions that you would like to see asked, please put them in the chat. I will monitor, and hopefully we'll have a good discussion and be able to hit many of the topics that you all are interested in. I know that you are a smart and informed crowd. So we won't spend too much time going through the basics.

Though, I did want to recommend one thing in advance of this conversation. Just this morning, ACE put out an issue brief that Peter McDonough helped author along with several co-contributors, all stars, in the field. And I think we're about to put a link to that issue brief in the chat. So you might want to just have this handy either for reviewing during the podcast or potentially afterwards, because I just think it's terrific. It really boils down a lot of the important issues into one handy five-, six-page brief.

Okay, with all of that said, huge topics, let's dive right in. So potentially, why don't we just start right at the top? So Madelyn, what are the key elements of the court's opinion last week? And how have the legal standards applicable to admissions changed?

Madelyn Wessel: Thanks, Mushtaq. It's a pleasure to be here. As a former general counsel, on behalf of Peter and myself, I do want to make one kind of important point before both of us dig into our assessment of this case and the implications for our colleagues in higher education. And that comment is just that it's really crucial, I think, to work with your in-house counsel. Or if you're currently working with external counsel, to be a tight ribbon with that team. These cases, the outcome here, is going to cause some really significant changes in admissions practices. And as I think you'll hear, certainly in my view, has implications beyond admissions. But facts really matter. And your institution's culture and empirical reality, your institution's risk tolerance, all of those are really core issues that you've got to team up with counsel to resolve in implementing what comes next. So take all of our thoughts with the appropriate grains of salt. And be sure that you're working closely with your actual lawyers as you move forward in this kind of uncharted space.

So with that caveat, the majority opinion was authored by Chief Justice Roberts. And he seems to have made a very specific point of not saying that the court was overruling 50 years of prior Supreme Court precedent when it came to higher education. But I don't think that's actually what happened here. De facto, the court did overrule decades of precedent in ruling against Harvard and UNC. In my opinion, both Harvard and UNC had faithfully followed existing precedence set by the cases that came out of Michigan, Texas, and earlier, the UC Davis case, Bakke. The trial courts in these cases also found as a matter of judicial fact-finding after trial in both cases that the universities had faithfully followed the prior precedent of the Supreme Court.

But when it got to the Supreme Court, a majority of six decided no. And the way in which Chief Justice Roberts reasoned the case I think is very important for the tea leaves that it leaves us with in moving forward. On a fundamental level, I think what the court did was remove what had been a generous, special option for institutions of higher education in dealing with the principle of strict judicial scrutiny, which is a constitutional principle that has long been applied to uses of race by public actors to which the Constitution applies. It's also the case that the Supreme Court had found that Title VI, which is a federal anti-discrimination statute that applies to recipients of federal funding and therefore covers both private and public institutions, has been interpreted by the court as having the same interpretive standard, strict scrutiny, as the Constitutional standard under the 14th Amendment.

So Harvard was subject to Title VI. UNC was subject to the Equal Protection Clause. Chief Justice Roberts basically says we're just going to make this a decision under the Equal Protection Clause because Title VI is covered in the same way. And what the court did was say that the structure that had been applied for decades to institutions which had given deference to institutional judgments around the compelling need for diversity and the appropriate means that could be chosen to achieve it, I think is gone. The court has come up with a decision that, in very direct and almost brutal terms, rejects the efforts that Harvard and UNC made to comply with existing law. And basically says any use of race in an affirmative context is going to be subjected to the same ruthless scrutiny that historic discrimination against individuals of color was subjected under the Constitution.

So what are a couple of just key aspects here that I think are really important and will guide a lot of our thinking and work moving forward? So the first point, and one that Peter and I have talked about so much over the years, is that the Michigan cases, the prior precedent in admissions, basically said, okay, there's strict scrutiny applied to any use of race. But an institution can satisfy that strict scrutiny if it demonstrates a bonafide, serious, rich, and abiding commitment to diversity. And it is able to show that the means chosen to achieve that diversity goal of its student body are narrowly tailored and are fully justified because the institution has explored race-neutral alternatives and found that they were not sufficient to achieve that diversity goal. As I read the decision, diversity has been basically disallowed as a compelling interest of higher ed per se. It doesn't mean that you can't consider diversity, that we can't use those words on campus, that they may not be part of programs. But as a basis for using race in an affirmative sense, there is, I think, really a change in doctrine.

Second, the court in this opinion equates any affirmative use of race and admissions with negative discrimination against everyone else. And the court had not done that before in the context of higher ed at all. So the court basically says if you're using race as a positive for X student, you're discriminating against all the non-X students. And that is a radical doctrinal shift. The court also takes some pretty substantial swats at things like the way Harvard and UNC defined racial categories, which of course just followed the federal organization of race. And I think there's been plenty of folks who've thought that those categories were pretty broad in sweeping, for example, all groups of Asians into one basket, Hispanic or Latinx in one basket.

A lot of that rhetoric in the decision is rhetoric that people have pondered and thought about. But in using those categories, both Harvard and UNC were simply following the general principles that the federal government has put out for us. So that's certainly another component that is important. So a few closing opening remarks. First, the court certainly hasn't disallowed race-neutral efforts on campus -- we'll talk more about that -- to achieve various goals. And the court left open one window that Peter and I are very familiar with because we worked very hard on this issue, which is the court, the majority opinion makes a point of saying that institutions can still allow students to write about their life experiences. And to the extent that students write about race, that isn't disallowed. You don't have to sanitize those essays or de-identify racial or ethnic information any more than other information that a student might provide in an essay.

But the court goes on to say -- and this is the great enigmatic next bucket of questions we'll be dealing with for coming years and probably litigating -- you can't use race, when you use those essays, in a positive way to support a student's admission. So with that opening, I think I'll turn things back to you, Mushtaq, and Peter.

Mushtaq Gunja: Yeah, thanks Madelyn. I'd love to dig in a little bit on that question about essays and applicants identifying their race in those admissions essays. I do think that there's a lot of potential play in the joints there. But Pete, same question to you. Initial reactions to the legal opinions. Anything jump out at you that Madelyn didn't already note? Anything from the concurring or dissenting opinions that we should pay particular attention to?

Peter McDonough: Well, I'm going to pick up, Mushtaq, where Madelyn left off. This idea that indeed we had pressed and others had pressed about being able to talk about one's legitimate self and not, if you will, hide the fact that one is from a particular race or ethnic background. What the court's saying in my view is that's totally fine. But the devil in the details is going to be what you do with that in the admissions office. And some of you may be wondering, well, what does that mean? Well, the concept's supposed to be making a decision informed by race in and of itself about thumbs up or thumbs down for an applicant is not permissible. It's just not permissible. And I think to think about this in a longer look-back context, we need to recognize what has been an interesting journey here over the last weeks and months involving language.

This is not and never was an affirmative action case, this case involving Harvard or this case involving the University of North Carolina. And I think the angst about the decision and the message it has been sending may in part be due to this deeply embedded misunderstanding of what the cases were about. Everyone calls them affirmative action cases. Even some of the justices called them affirmative action cases. But they were not. Bakke back in 1978 was an affirmative action case. Now, you're now wondering, what's McDonough talking about? Well, affirmative action reduced to its simple basics is to lift up and enable a particular person, a particular group, let's call it an underrepresented group or one that has been subject to historical or social discrimination, to make that the end in of itself. To help, if you will, level the playing field for that person, that individual. Bakke rejected that in 1978 by a 5-4 decision.

Justice Powell, who's viewed as sort of the architect of the educational value of diversity as a justification for considering race or ethnicity and admissions, said that affirmative action is not permissible. That was the first basis that the University of California at Davis had argued to the Supreme Court. And Justice Powell sided with four other justices in saying nope, affirmative action in that context doesn't pass legal muster. It's unconstitutional. But what is acceptable is to consider an institution's sense of mission. To consider an institution's autonomous sense of how to achieve that mission.

And Justice Powell said what I'm hearing is that institutions are seeing an educational value in a diverse student body. And we are going to embrace and accept the institutional articulation of that. Grutter in 2003 formally confirmed that. And fast-forward to Fisher cases involving University of Texas at Austin did so again. But they previewed there what was going to happen last week. The court and Fisher, by a slim one-justice majority, had upheld the university's rationale for diversity-associated goals, and said, quote, 'They're sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them," unquote, despite any numerical quota.

The court went on to say that, "The goals are sufficiently measurable, including the destruction of stereotypes, the promotion of cross-racial understanding, the preparation of students for an increasingly diverse workforce in society, and the cultivation of leaders with legitimacy in the eyes of the citizenry." But Justice Roberts dissented and Justice Roberts said that the university's stated interest in diversity were not sufficiently measurable and were shifting as compared to those that had been articulated earlier. He found it unpersuasive. And he found that the arguments by the University of Texas at times less than candid about their embrace of this educational value of diversity. So this is the climate that led us to these decisions. And this is why so many observers believed that these decisions were sort of a fait accompli. But I'm emphasizing the distinction here. So that as we all go off and try to digest and apply what we're hearing, we think about the case for what it is and the issue for what it is. It's about diversity and the educational value of diversity, institutional autonomy admission. It's not about narrowly boxed affirmative action.

Mushtaq Gunja: So Pete, can I ask you a follow-up question there? So did the court rule that it was just UNC and Harvard's particular admissions practices that were not measurable enough on this question of diversity? Or are they making a broader ruling that diversity cannot be measured and so no institution should try to perfect or do a better version of what UNC and Harvard were doing? I mean, what's the takeaway here for our campuses?

Peter McDonough: So courts including the Supreme Court take the record, the evidence, the facts as they are. And they rule on particular cases, particular issues with particular records. My view is this court said, Harvard and UNC, nope, you didn't accomplish it. Never say never. But boy oh boy, if they couldn't accomplish it, given all the effort and time and dozens and dozens of witnesses that they put up… And let's remember trial court judges who presided over those trials and wrote detailed, lengthy opinions that said, Yeah, they did a fine job. We believe in their articulation of the measurable educational value of diversity. This court said no. Could it ever happen? Maybe. In our lifetimes? Mmm.

Madelyn Wessel: I agree with Peter and I do want to make sure that people think through other aspects of the ruling, because I think I've never seen from the Supreme Court, certainly in the higher ed context, any decision in which it went on to also say that any affirmative plus of race in the context of an admission's holistic process invariably discriminates against others. The court uses this term zero-sum game in a way that we haven't seen before, I think, Peter. And that zero-sum game analysis, which the majority of justice is signed onto, I think makes it hard to think through a manner in which any institution could meet the standard and continue to use race as an affirmative plus factor in the way that was permitted before.

Mushtaq Gunja: That zero-sum game language really jumped out at me too in that it was as if the justices thought that we have invented a whole new way of doing admissions. But obviously, I mean, with that definition of zero-sum, we've had a zero-sum admissions policy for 50 years. It was a very weird part of the opinion to me. It was a striking reframe of what was happening, I think. So that Justice Roberts could get to where he wanted to go.

Madelyn Wessel: Well, as Peter pointed out, Justice Roberts has been waiting for this. I mean, Justice Roberts ascended in the Fisher cases. I think we've simply been in a process of accretion of majority of justices who would not go along with the prior interpretive law and the opportunities that were afforded institutions. I will say that what worries me about this beyond all the obvious factors is it really inserts some new elements into a historic judicial deference to institutions of higher education as a matter of academic freedom afforded institutions. It's not clear that the court will move this change and deference outside of the context of race and strict scrutiny. But it's definitely a divot. It's a jab in the side of a principle that's been very important to institutions of higher education and associations that have represented them in the Supreme Court and elsewhere.

Mushtaq Gunja: Just looking at the chat, I can see that folks are quite interested in what the implications of this decision are on admissions practices. And what our institutions can actually do now in light of this decision. So let me ask you, Pete, first and then Madelyn, what comes next? What can admissions departments do? How might they respond? The court has made mention of the permissible use of race-neutral alternatives. It's the key language, of course, from all things equal protection. How do we do that, Pete? And with all the caveats of we're not giving legal advice here, which of course we can't. It's all going to be campus specific. But what's the first thing that we should start thinking about doing?

Peter McDonough: Yeah, so probably the first thing is click into that issue brief that Mushtaq mentioned at the top of this hour. And you'll see a couple paragraphs by Steve Dunham and Art Coleman that I think is a good starting point. Nobody's going to want to hear this, but this is going to be hard. And there's going to need to be two lenses. The first is the nearest-term lens as folks are thinking about getting ready for the fall, if you will. And the much bigger, harder, longer work is going to be the long-term lens. So the near-term lens is going to be about, if you will, not giving yourselves easy targets. Here's the problem. Oftentimes, we're talking about a regulation that is going to be effective in two months or three months, or something else. This is effective now.

And so this gives those that are going to use the moment as either a reminder or as ammunition for going after an institution to do so. Now, one might go after an institution in many ways. These lawsuits were, if you will, the most nuclear way. Let's not presume they're the only way, as too many people on this dotEDU Live know. For publics, there are sunshine laws and other vehicles for just getting information. People are really adept at just trolling through websites. Policymakers, state and federal, can be asking information about what you do and how you do it. So in the nearest term is take a look at what you say, what you say in your websites, what you say on forums, what you say in emails to each other. And don't have, if you will, an unforced error on your part, create a misunderstanding of how you are proceeding going forward. And don't presuming you're going to be able to say, "Well, it's summer. I was on vacation. We're really busy." I don't think anybody's going to care. So that just sounds like hard work.

The longer term is going to be recognizing -- I'm going to presume almost all on this call do recognize -- that your institutions and your institutional leaders believe just as much in not only the educational value of diversity but the importance of opportunity. And you believe just as much in today as you did two weeks ago. And being able to figure out how not only to say that with words but with actions is going to be the longer-term game. And it's going to be, as Madelyn said, at the top of the hour, very, very fact specific and institution specific.

Some of you are going to be in, just frankly, different risk areas. You might be in a state that is different than another state. You might have resource challenges in terms of money available. You might have other things going on. Some of you may say, "This is the most important thing we have to do and we're going to lean into it as number one task for the next three years." I wish I could give you the five things to do, the cheat sheet, if you will. But that's my high-level-in-the-week-after answer, Mushtaq.

Mushtaq Gunja: And Madelyn, I just want to just follow up on one quick thing that Peter said, which was that our institutions and the folks on this call believe in the importance of diversity on their campuses just as much today as they did 10 days ago. What did the courts say about our institution's ability to have diverse campuses still be part of our mission? Is that still permissible for us to do?

Madelyn Wessel: Sure. I think it's absolutely still permissible. I'll drill a little bit deeper into some of the what-can-we-still-do issues. I've been working with some clients for months on these issues. Actually, all of us have been working on these kinds of issues, race-neutral kinds of measures, because the Supreme Court said, you have to consider them as part of any use of race. You've got to show that race-neutral measures standing alone are not sufficient to achieve your goals. So the record in these cases is replete with a lot of discussion of the different kinds of race-neutral measures that many have explored. Actually, I would specifically recommend that folks go to the Supreme Court website, grab the really fantastic briefs that were filed by the University of California and the University of Michigan. Because they detail all the things those two big institutions have done in the interim since their states prohibited the use of race in admissions as a matter of state constitutions. And learn everything you can from what worked and what didn't work.

I want to say it's not the case that nothing else works. It may be the case that nothing else works quite as well or quite as efficiently. But that doesn't mean that all hope is lost here. There are lots and lots of things that institutions can and will need to explore from obviously using other types of measures, socioeconomic measures, first-gen, urban, rural status, feeder schools, that are obvious and intuitive choices, to more subtle things that may support and help diversity. The other thing that I think is really important to at least say here is that the court did not say that you have to remove or redact race from the admissions process. It may be that counsel in working with individual schools and programs decide as a matter of risk assessment, it's better not to have race be known to admission staff. But the court by signaling that race could be included in an applicant's essay and that those essays could be rich and meaningful to institutions, I think, de facto did tell us, and I've seen several questions in the chat, do we have to take race out?

The answer is you don't have to. It may be prudent to do so in some instances. But it doesn't have to be gone. And as far as other kinds of monitoring for accreditation, as far as looking at patterns, who did we admit, who took us our offer up, who said no, as a way of learning how an institution can do a better job of outreach and recruitment to help to identify areas where mentoring and other types of support are really important. I think race and demographic information is going to continue to be key. The issue is, to get back to Peter's cautions, you have to use it in the right kinds of ways. And nobody is going to be served by having emails or public statements that undermine programs that have been developed in the wake of this case that are race-neutral on their face. And we want to keep them in the safety zone.

Mushtaq Gunja: I'm looking at a couple questions in the chat. Would a diversity fly-in program for high school seniors that was targeted toward, let's say, either African Americans or perhaps all people of color, would that be a race-neutral program? Or is that something that has race on its surface and thus would be impermissible under the court's ruling?

Madelyn Wessel: I think that the middle-level question you're asking here is how far beyond admissions does this decision actually extend or go?

Mushtaq Gunja: That's right, yeah.

Madelyn Wessel: There may be different readings of this. But when I read the actual language in the Roberts opinion, it is hard to reconcile that language with any restrictive use of race by an institution. That doesn't mean we can't look at other factors that often align with race or ethnicity and poverty and underrepresentation. But I would be concerned -- Again, this is the one of those questions, talk to your legal counsel -- but a program that confers a tangible, substantive benefit on the basis of race and is not extended to other applicants or students who might share similar characteristics of underrepresentation, underprivileged, lack of economic opportunity, I think that's going to be tougher to defend after this decision. And now Pete's going to tell me where I'm wrong on that one.

Peter McDonough: Well, Mushtaq helpfully noted at the top of this session that Madelyn and I spent a lot of time on campuses. One of the things I always said is it's not the outcome of the lawsuit that probably is most painful, because at the end of the day, we'll probably either get there and win or we'll have figured out along the way that we should resolve it and change course. It's the lawsuit or the OCR complaint or the public challenge or the policymaker questioning of what you're doing and why you're doing it. So a lot of us are going to want to know, and in quite a nuanced legal way, would we win if challenged? I think for more of us, the question is would we be challenged? Because look, anytime you have to deal with a challenge, it's a distraction away from dealing with the goal and the objective.

And so the fly-in program is an example. Smart people can figure out smart ways to have an inclusive fly-in program that by and large accomplishes the objectives unless the objective is to make it only available on the basis of something that's now been deemed illegal. And so rather than fretting about that or trying to find the narrow pathway to yes on that one if challenged, how about trying to avoid the challenge? I think that is the early-days message here. Let's start thinking creatively about what our objectives have been and let's reset. And if I may, I also want to offer one other observation. It may be true on most campuses, I know it was true on mine. One of the great things about the admissions or the enrollment office historically has been by and large that it can segregate itself from outside pressures from elsewhere on campus.

It's hard to do admissions and it's only gotten harder. But it's really hard when you're an open book and everybody sees what you do and how you do it. And of course, the fact that that's not how it's played out on a lot of campuses, particularly at selective institutions, has led to charges of lack of transparency. And I don't know what you do and how you do it. Well, guess what? This is going to be a moment now where the admissions and enrollment folks need to work hand in hand across the institution. And there's going to need to be presidential and chancellor leadership and authorization in that regard, because lots of stuff is going to have to get brought back to basics. There needs to be some rethinking.

I'm just going to use an extreme example. One may ask whether, if you will, an admissions preference for a particular type of sport that yields year in and year out, a matriculated pool of students that doesn't add to the diversity of the class, should continue to have admission support. For a lot of folks in this session, I've just touched the third rail here. But do you not ask the question even if it is to have the guts to confirm that the answer is we're going to keep giving admission support?

Madelyn Wessel: I really want to just echo what Peter is saying and take it a step further. I think what the Supreme Court has done in these cases is take away what's been a really important tool for institutions to try to achieve diversity, to try to address the imbalance in our country that is of such longstanding. When you take away one tool, it's an opportunity for institutions to think about the entire framework within which they've operated. We already see a challenge, as many probably have noted, to the legacy preference that is utilized at Harvard.

I think it's worthwhile for staff and admissions teams and leadership at institutions to look at the full sweep, whether it's athletics, to legacy, to all the ways in which an institution has selected its students. And make sure, whether it's scores, test scores, to other things, that you're really thinking through the implications of those current practices. And that you're being as creative and innovative and courageous as possible in trying to develop a framework for admitting students that will continue to be just and equitable and fair. So don't just stop with what's been taken away. I think it's important to think about what you need to rethink and redo in entire programs as part of this process.

Mushtaq Gunja: I'd love to circle back to that legacy question if we have time. But there are a couple of questions in the chat that have come up a couple times. I just want to make sure that we address them. So Peter and then maybe Madelyn, how does this ruling impact the work of our HBCUs, of our Tribal Colleges and Universities? And then is this ruling limited to the undergrad experience? Does it also apply to nursing schools, medical schools, other types of schools where, for lack of a better word, I mean, the importance of racial diversity is especially acute? So Pete, Madelyn ... or maybe Pete first, what's your take there?

Peter McDonough: Well, why don't I take the latter and Madelyn, if you would, can take the former about Tribal Colleges and HBCUs. So yes, this ruling from an evidentiary standpoint was based upon undergraduate admissions. But the decision, the law that we now are living by, if you will, needs to be applied to all programs or activities in the admission space. And I think fairly stated, if you're going to follow my let's-avoid-being-a-target approach or if you're going to put it into the risk assessment, most other, maybe all other programs or activities on campus. But boy oh boy, graduate admissions is sure a close cousin to undergraduate admissions. And let's not forget that in the Michigan cases there were two: one was about undergraduate and another was about graduate. And let's not forget that the original case in this line, Bakke, was about med school admissions. So yes, think of it together.

Many folks listening in here are now scratching their heads again. And they're going, but wait a second. You know how applications to PhD programs work? It's not like undergraduate admissions, it's different. These are very unique, almost one-off admissions processes sometimes. And then others are listening and saying, yeah, not in my business school. It's very much like undergraduate admissions, but we really don't care whether somebody can throw a football 50 yards. The principles are going to be the same. And so the concerns are the same. The near-term objectives of taking a look at the websites, taking a look at what's being said on forms, even intra-office forms at the graduate level, same.

Boy oh boy, Madelyn and I had fun talking to faculty on campus. It's one of our great pleasures as we look back. Faculty are going to need to be able to take some of this in, because particularly at the graduate level, faculty might be much more involved in admissions than at the undergraduate level. So having some shared grief, if you will, with faculty and others. And then getting the sleeves rolled up about, well, okay, what do we do about it to still achieve our objectives and goals? Is going to be really important. And it's probably going to be a different set of conversations and different approaches than with the undergraduate admissions team.

Mushtaq Gunja: Yeah, that's really helpful, Peter. Madelyn, before I turn to you on this question about HBCUs and TCUs, I am just going to note that we're at 1:40 Eastern. But this conversation's rich, we have a lot more to get to. So I'm going to suggest if it's okay with you, Peter and Madelyn, that we extend this for the full hour. And if participants want to hang with us for a little bit longer, we would love to see you. So Madelyn, the question on HPCUs and TCUs.

Madelyn Wessel: Glad to. Obviously, Peter and I and lots of others could probably spend the next 10 hours talking about this and we still wouldn't have figured out the answers to many of the incredibly great questions that participants have posed.

So with respect to HBCUs, I don't think anything in this opinion causes us to have to question the fundamental mission of those institutions. And HBCUs don't discriminate on the basis of race. There's no racial selection criteria that says non-Black students can't attend. And in fact, HBCUs are rich in their diversity. So I don't see an immediate impact in that sense on mission and focus of HBCUs. I do think that given that the court has essentially equated all forms of race consciousness as equally negative and equally exclusionary in this opinion, that there needs to be some care taken in how achievement of that HBCU goal is accomplished through admissions processes.

The court has not fully settled out on the issue of tribal status and rights. Many of you may have seen the Brackeen decision that was issued a week or two before the Harvard and UNC decision. In that decision, the court affirmed the validity of ICWA. But there are concurring opinions by several justices that make the point that the issue of Native American status as a racial preference versus a political tribal matter hasn't yet been resolved. So I think we're likely to see more to come on the issue of Tribal Colleges and preferences on the basis of Native American or tribal status. For now, I don't think we need to make a change. But I do think there's a possibility the Supreme Court's going to weigh in on that one in the next year or so as well. So I think that the jury's out a little bit on some of those questions.

Mushtaq Gunja: And then, Madelyn, there's a question in the chat about the implications of this ruling on AANAPISIs and HSIs. Well, let me just pose that question to you. Is there any special worry for those sorts of institutions that that's different and apart from the rest of the college landscape?

Madelyn Wessel: For me, I would say not today, not right now. I think it's just really important to focus on what the court did here and what it didn't do. It did not say that an institution's mission has to be distorted. The court said that one of the ways that we've historically reached to mission with respect to the use of race by highly selective programs and institutions has got to change.

Mushtaq Gunja: One question that that's come up quite a bit, and I guess it's just in the air right now with all of the attacks on diversity, equity, and inclusion offices on our campuses even before this ruling, is what is the effect of this ruling on our DEI offices on campus? Is there an effect? And if so, what is it? So Pete, let me turn to you first. And my friend, you are on mute if you didn't see that. Yeah.

Peter McDonough: So for months, maybe for a few years, we felt this accelerating attack on individuals who have made their life's work to follow, not only their heart, but what their sense of what's right and what's best really is about. And this decision has to be so disheartening for folks in what I will just generalize as a DEI space, because there are so many people that are working in this area that either don't work under that moniker or work behind a door that essentially has those letters on it. And one of the things that was gratifying, and I don't think it was lip service by any means, is the immediate and aggressive re-embrace or emphasis of embrace on that good work on the attention, not only to continuing to seek and have a diverse community, but getting closer to, shall I say, the non-legal affirmative action types of thinking and action. Trying to recognize that we all don't come to these opportunities sufficiently and equally able, equally prepared, equally aware of the opportunities.

I don't have to tell the folks on this session about the difference between somebody who's aware and able to take advantage of early action or early admissions at a competitive college versus those that simply aren't. And there's been a whole lot of conversations, and rightly so, questions in the chat about financial aid and scholarships. Because at the end of the day, probably the biggest impediment to getting to and through college is paying for it. And so I think of that as a DEI type of undertaking as well. So I think that we have to figure out how in our local and so sometimes very politicized environments to keep up the work, keep up the sense of mission here, and avoid being victimized. And try to recognize if at all possible that there's a lot of allies out there. I really believe that this decision may have the boomerang effect of reemphasizing and revitalizing those allies.

The words might be different. The initials may not be worn on the sweatshirt or the hat, DEI, in all contexts. And maybe that will be a disappointment for some, but it might be just smart strategy for others. So long-winded way of saying that this is going to have a big impact. We've already seen it in that area. But I also think it's going to have a positive impact for the allies who may have just been presuming that people that are in those roles take care of those roles. Now we are reminded it takes a village.

Mushtaq Gunja: Madelyn, one of the things that jumped out at me in this opinion was this seeming carve out for military schools and military academies. Could you just spend a second explaining what happened there and how our institutions are supposed to think about that? Is there an opportunity there that our non-military academy institutions might be able to follow to be able to fall into this carve out? What was your take?

Madelyn Wessel: Well, my take was that Justice Roberts and the majority were not yet ready to tackle the military academies. They didn't see a full briefing from them. They didn't have a factual record on the military. They were wary and cherry about obliterating those programs. There's been some conversation, well, does that mean that ROTC on campus is somehow now immunized? I don't have an answer to that one? I don't think the answer is yes. I think the court's footnote and comment there was pretty literally directed at the US military academies. But I would certainly support creative thinking by people smarter than me around that issue for sure moving forward. For now, I think the court left that for another day. And we should say, okay, thanks. And let's see what we can make out of it. But it certainly isn't a broad green light for us to revisit the gist of the opinion and the real meaning of it. I-

Peter McDonough: I wondered whether it was an invitation to the military academies to articulate their educational value of diversity in a different and measurable way. And not suggesting or answering whether they could, but finding a way to be able to say in cocktail party conversation or otherwise, no, no, no. We didn't say never. There might be. And maybe it might be in the military academies where they could do something measurable. They're good at measuring stuff, like how long the runway should be. So maybe they can do it.

Madelyn Wessel: Well, I think that's a good point, Peter, and one that I hope the academies take up. Certainly, the court wasn't very convinced by what I thought was staggeringly good work done by Harvard and UNC to document the importance of diversity in their programs and in their mission and in what they saw as the nation's future for its leaders. But military academies do have perhaps a tighter environment and a better opportunity to make that diversity case. Whether they could also meet some of the Constitutional standards around the use of race as a positive, negative, I'm not sure. But I hope they try.

Mushtaq Gunja: I mentioned, and it was mentioned in the chat, this circling around to this question about legacy admissions. So I wonder if we could just for a couple of minutes talk about the implications of this decision on legacy admissions. And then just broadening that out just slightly, what do we see as the next set of possible lawsuits or challenges, complaints, that might sort of come down the line in the few months, potentially next few years?

Peter McDonough: Well, let me just start real quick. When I saw the first headline in the newspaper last week about the lawsuit against Harvard relating to legacy admissions, I scratched my head a little bit. And then I went and I dug in and I realized, no, it's not a lawsuit as us lawyers think about lawsuits. It's a complaint filed with the U.S. Department of Education's Office for Civil Rights. It's a long complaint. And you don't need to have a long complaint with OCR. You can file a short complaint. But this one is 31 pages, obviously for the media as well as for the Department of Education. And it's asking the Department of Education to investigate legacy preferences at Harvard. And it's saying, hey, Department of Education, here's what we think. We think it violates Title VI of the Civil Rights Act. Now, Justice Roberts, in the majority opinion, put in a footnote that this case is also about Title VI because everything that Harvard and UNC have done here also violates Title VI.

Getting back to the legacy case, a legacy complaint if you will, to OCR, they don't say there was an intent here to discriminate. They say there was an impact here. It's called a disparate impact. It's another avenue, if you will, to prove discrimination. And a plaintiff cannot go into court by virtue of a Supreme Court ruling many years ago and herself assert a Title VI disparate impact claim against the university. But she can go to the Department of Education and ask the Department of Education and the Department of Justice to investigate that. And that is what has happened.

Now, that can happen with a whole bunch of other stuff. And you're all thinking about things in your own context. Well, we might have a disparate impact based upon that sports team that I mentioned, et cetera. This is where it's going to be even more important than ever, than ever, to think about the why of what you do. Because without getting too lawyerly here, one of the basic questions in a disparate impact investigation by the Department of Education or Department of Justice will be, is the proffered justification for what you're doing here -- think legacy admissions -- legitimate, is it integral to your mission, and is it important? That's a legal analysis. Frankly, it pretty much aligns with how we ought to be thinking about a lot of this stuff on our campuses. Forget about the law, think about what we do. But get ahead of it. That would be my message.

Madelyn Wessel: Yeah, I agree. Couple of additional thoughts there, Peter and Mushtaq. First of all, what I said before, I think these cases and taking away what's been a really important tool in the toolkit to achieve equity and diversity on campus, should cause us to look at all the ways in which we select for students. And we should be self-critical, and we should be clear and candid with ourselves about whether there are mechanisms or criteria that are being used that have a disparate impact, that have a negative impact on students of color or on others who've had, by and large, less opportunity to come and participate in the enterprise of higher education or at our own institutions. It is a chance to rethink the process. And make sure that we have not permitted barriers to exist that inhibit and bar opportunities. And if we have, to take a look at obliterating them. So that that's just one point.

Another point about the complaint that was filed, as Peter rightly notes, it's a complaint to OCR, it's not a lawsuit, even though the press kind of grabbed that lawsuit concept, is that the Biden administration has said they're going to try to issue some guidance out of the Department of Education about how institutions might address and deal with this Supreme Court decision. My expectation is that they're going to be thinking about that issue broadly as they think through the legacy questions. And that we may see some guidance coming out from the Department of Education in the coming months that at least give us some important things to think about.

Peter McDonough: Yeah. Hopefully, we might get some guidance that speaks a little bit to financial aid and scholarships. There's a lot of understandable angst in the chat and elsewhere about that. Not a space in this session to talk about this in any detail. But remember, this is about choosing. Who do you choose, how do you choose, and why do you choose to do something that impacts somebody. If the choice is a race-based choice or a race-informed choice, problem. There is a problem. And so there will be a lot of thinking that's going to have to go into how we, quote, unquote, "do financial aid" in light of this decision.

Mushtaq Gunja: And targeting students for recruitment by zip code or by socioeconomic status, things that are race-neutral, you read at least as of this moment as being broadly permissible, yes, Peter and Madelyn?

Madelyn Wessel: I absolutely do, Mushtaq. I think people have to be incredibly thoughtful and creative about using those tools moving forward. I would caution, getting back to an early point of Peter's, think about your public rhetoric when you do that because the argument that you started a new program or initiative to achieve diversity is a tool that can be subject to that disparate impact play game as well. So I would say be thoughtful and mindful about how we talk about these initiatives. But be creative and be empowering to the great folks on campus who care about these issues and want to continue to be an embracing and open environment.

Peter McDonough: The phrase workaround should never be typed or used or spoken or frankly in one's head going forward. This isn't about workarounds.

Mushtaq Gunja: Okay, friends, we have two minutes left. And I hesitate to do this, but do you have 30-seconds worth of closing comments? And then I would like to just make a couple of notes at the end about how many of these questions we were not able to answer and what we might be able to do next. So let me go Peter first and Madelyn.

Peter McDonough: I'll just say that for a lot of us, and I'm certain it includes almost everybody that's dialed in here, there's a stages-of-grief element to what we're going through here. You got your denial, your anger, you're trying to bargain, how can we blah, blah -- Now we're just depressed. I think we're somewhere between bargaining and depression. We have to move to acceptance. And then when we do move to acceptance, we look around and we realize we work with really, really smart people. And if they believe in their mission, and if there is this educational value of diversity and this leveling-the-playing-field belief and access belief, smart people are going to figure it out. It's just going to be harder.

So I just encourage folks to not skip over these stages of grief, but get to acceptance. And then let's all work together, and individually on our campuses, and then learn from each other's campuses. I'm looking forward to seeing what people say and writing about what they're doing. And being able to talk about it in a way that they're not worried about it because they're doing stuff that frankly isn't subject to legal challenge. And it works.

Mushtaq Gunja: Thanks, Peter. Madelyn?

Madelyn Wessel: I can only echo Peter and say all is not lost. We've lost one of the tools in the toolkit. We are the brightest, most amazing community. We are higher ed, full of thoughtful, brilliant, caring people who really care about values that are critical for this country's success and future. I have a lot of confidence in all of the colleagues that are on this call and not on this call, that we can figure out ways to do the right thing that will be legally sustainable and will be actually effective. It may be a little tougher. It will cost more money, and institutional leadership has got to really align around that and be willing to supply the resources to these programs that are going to be needed to move forward. But yes, all's not lost.

Mushtaq Gunja: Yeah, I love that as a place to end. It will be hard, but we can do it. If anybody can do it, it's the group of folks in our higher ed institutions. So it will be difficult, but all hope, as you say, it's not lost.

Friends, there were dozens of excellent questions in the chat that we did not get to. But we've taken note of what they are. And we'll take them back and try to figure out the right way to be able to engage with those questions potentially in some other sort of document that ACE puts together or something. But be assured that we saw these questions. They're excellent. I'm sorry we were not able to get to all of them. Friends, please thank Madelyn and Peter for me. Please follow up with them if you have questions. And thank you for being part of this special ACE dotEDU Live. Thank you all.

Madelyn Wessel: Thank you.

Sarah Spreitzer: As always, you can check out earlier episodes and subscribe to dotEDU on Apple, Google Podcasts, Spotify, Stitcher, or wherever you listen to your podcasts. For show notes and links to the resources mentioned in the episode, you can go to our website at While there, please take a short survey to let us know how we're doing. You can also email us at to give us suggestions on upcoming shows and guests. And finally, a very big thank you to the producers who helped pull this podcast together, Laurie Arnston, Audrey Hamilton, Malcolm Moore, Anthony Trueheart, Rebecca Morris, Jack Nicholson, and Fatma NGom. They do an incredible job making this happen and making Jon, Mushtaq, and I sound as good as possible. Finally, thank you so much to all of you for listening.

About the Podcast

​Each episode of dotEDU presents a deep dive into a major public policy issue impacting college campuses and students across the country. Hosts from ACE are joined by guest experts to lead you through thought-provoking conversations on topics such as campus free speech, diversity in admissions, college costs and affordability, and more. Find all episodes of the podcast at the dotEDU page.

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