ANALYSIS: The new battle lines of affirmative action

In a two-part analysis, Campus Reform outlines how the legal fight over affirmative action in college admissions is just beginning.

The following is the second of a two-part analysis examining colleges’ immediate responses to this summer’s Supreme Court decision against affirmative action in college admissions.

Read the first piece here: [ANALYSIS: The battle over affirmative action is just beginning]

Taking Pot Shots At The Court

For the most part, schools other than Harvard seem less intent on playing smashmouth football with the Supreme Court, and are looking for ways to end-run it instead.

[RELATED: NAACP calls on colleges to pledge ‘Diversity No Matter What’ following SCOTUS ruling]

A few schools are going with the passive-aggressive approach. Sarah Lawrence College, a small liberal arts school in New York, took a swipe at the Court by creating a new application essay prompt that encourages students to write about how they would be affected by the decision:

The University of Virginia is also preparing a prompt for the 2023-2024 admissions cycle that seemingly responds directly to the Court’s ruling:

UVA’s prompt is standard fare for an admissions essay at first glance, but the prompt seems to lead students toward writing about their so-called “lived experience” as a member of a racial minority or LGBTQQIP2SAA community. The prompt also seems to take advice from President Joe Biden, who advised colleges to ask such essay questions in remarks reacting to the ruling. 

“What I propose for consideration is a new standard, where colleges take into account the adversity a student has overcome when selecting among qualified applicants,” Biden said. “It means understanding the particular hardships that each individual student has faced in life, including racial discrimination that individuals have faced in their own lives.”

”Holistic” Admissions

But in most cases, the groundwork was laid even before the Supreme Court ruling; the new method in vogue among higher education institutions is the so-called “holistic” admissions process, which prioritizes subjective criteria over test scores and extracurricular activities. “Holistic” admissions standards include limiting the importance of extracurriculars and Advanced Placement classes, because these represent increased economic gaps; adding “context” to academic rigor– that is, looking for other ways an applicant challenged him-or-herself outside these programs; and “situational judgment tests,” which evaluate students’ critical thinking and responses to complex hypothetical problems. At the same time, “holistic” admissions call for lowering perceived barriers to entry, like application and admission fees, and required scores on standardized tests.

Indeed schools are already in the process of eliminating standardized testing in admissions. Campus Reform reported in June that over 1900 schools– representing 83% of four-year colleges and universities– are no longer requiring standardized test scores in applications. Included in this number is Columbia, which is the first Ivy League school to do so. Harvard is also doing it, but, so far, only through 2026.

Schools are also trying to level the playing field by removing “legacy admissions,” priority status given to family members of current and former students. Harvard in particular has come under immense scrutiny over its legacy admissions process in the wake of the SCOTUS rulings. As reported by Campus Reform, state lawmakers in Massachusetts have proposed a law taxing the endowments of schools that use legacy admissions,of which Harvard would bear the largest burden, as much as $100 million in penalties. Similar legislation is in the works in Congress as well. Furthermore, the University of Minnesota- Twin Cities has dropped both race and legacy admissions from its “holistic” admissions process.

[RELATED: University of Minnesota drops race from admissions after SCOTUS ruling]

The most popular method of increasing diversity within the bounds of the law, which has been going on since long before SFFA v. Harvard and SFFA v. UNC, is community recruiting. Universities partner with local K-12 schools to build a pipeline to increase the number of minorities going to college. The premise is simple and seemingly noble: by supporting students from underserved minority communities, they increase the pool of applicants from those communities. My alma mater is a prime example of this. Through its Office of Civic Engagement, Rutgers University-Camden has a rigorous outreach program for minority students in the city of Camden, New Jersey. 

“The Office of Civic Engagement K–12 Education Outreach initiatives focus on engaging the critical resources of the University to create academically enriching and rigorous programming for students in grades K–12 and creating educational pathways to increase the number of underrepresented students in and around the city of Camden who apply, enroll, and successfully complete post-secondary education.”

Programs under this initiative include the “Rutgers-Camden Ignite” program, targeting the North Camden neighborhood; The Hill Family Center for Access, which provides “support and guidance” to “ensure access to and preparation for success in college”; partnerships with elementary schools in North Camden; and “Rutgers Future Scholars,” a mentorship program for “[e]conomically disadvantaged, academically promising” students in grades 8-12.


Scholarships also seem to be a point of contention from both sides. That much became clear when basketball legend Charles Barkley rewrote his will to provide $5 million in scholarships exclusively for Black students, following the SCOTUS ruling. 

“I love Auburn,” he told of his decision. “I’ve actually changed it to be used for kids from poor homes. But after that ruling yesterday, my phone was blowing up. I was talking to my friends and said, ‘I need to make sure Black folks always have a place at Auburn. So, I’m gonna change my will and make it exclusive for Black students—all $5 million.’ It’s just for me the right thing to do. I always want to make sure that Auburn’s diverse.”

On the other hand, Missouri Attorney General Andrew Bailey put the issue of scholarships into focus in a letter he sent to all Missouri colleges and universities immediately after the ruling was published. “In today’s rulings, the Court held that there are no legitimate reliance interests created by past rulings that seemed to bless affirmative action,” Bailey wrote. “There is thus no justification for Missouri institutions to ‘grandfather’ in existing programs that disfavor applicants based on race. All Missouri programs that make admitting decisions by disfavoring individuals based on race—not just college admissions, but also scholarships, employment, law reviews, etc.—must immediately adopt race-blind standards.” 

The Right Responds

Bailey’s crackdown on scholarships is one instance of a proactive pushback from the right. From the beginning, commentators on the right noted these workarounds and challenged activists and government leaders to hold universities to account. “The key will be the follow through, do conservatives have the conviction to doggedly enforce this ruling,” BlazeTV host Auron MacIntyre tweeted at the time. “This ruling means nothing if conservatives aren’t suing these institution[s] into oblivion, if Republican DOJs and AGs aren’t hitting them relentlessly. If conservatives just point and sputter as universities circumvent the ruling it will be entirely empty.”

At least at this point, conservatives seem to have met the moment. The day after the ruling was announced, conservative legal activist group America First Legal sent demand letters to over 200 law schools around the country, demanding that they comply with the ruling or face legal action.

[RELATED: ‘You are hereby warned’: Legal group tells law schools to back off plans to circumvent SCOTUS affirmative action ruling]

“You must immediately announce the termination of all forms of race, national origin, and sex preferences in student admissions, faculty hiring, and law review membership or article selection,” the letter read. “And you must, before the start of the next academic school year, announce an official policy that prohibits all components of the law school from giving preferential treatment to anyone because of that individual’s race, national origin, or sex.”

“There are those within and outside your institutions who will tell you that you can develop an admissions scheme through pretext or proxy to achieve the same discriminatory outcome,” it continued. “Anyone telling you such a thing is coaching you to engage in illegal conduct in brazen violation of a Supreme Court ruling, lawbreaking in which you would be fully complicit and thus fully liable. You are hereby warned.” 

A week later, Ohio Senator J.D. Vance sent letters to the presidents of all 7 Ivy League universities and several elite colleges in Ohio questioning how the universities intended to comply with the ruling. In the letter, Vance called them out for their hostile responses and expressed concern at their intent to subvert the ruling. “My colleagues have assured me that they share my concern that colleges and universities, and particularly the elite institutions to whom this letter is addressed, do not respect the Court’s judgment and will covertly defy a landmark civil rights decision with which they disagree,” Vance wrote.

[RELATED: J.D. Vance slams elite colleges’ ‘intention to circumvent’ SCOTUS on affirmative action]

Conservative leaders who understand the importance of our current cultural moment are keenly aware of university’s tactics and workarounds, and are ready to hold universities accountable to the law of the land.

The Fight Is Far From Over

The battle lines are clear, then. While some of their methods are more legitimate than others, the fact remains that many universities are openly hostile to the Supreme Court ruling and the equality it intends to produce. Universities are eager to preserve the sacred values of Diversity, Equity, and Inclusion, no matter what, and will do anything to protect their diversity regimes; indeed they were moving against true equality even before the Supreme Court ruled on the issue of affirmative action in higher ed admissions, and it appears they will attempt to continue to do so. However, conservatives appear to be standing strong and are ready to force colleges and universities to work within the bounds of the law. And rightly so. Equality and meritocracy are foundational to Western society; conservatives have the right and the duty to protect them for the next generation of college students.