The University of Virginia is facing a choice of historic significance: namely, whether to embrace admissions policies based on our colorblind Constitution or to engage in mass resistance to the supreme law of the land.
In Students for Fair Admissions v. Harvard and UNC, the United States Supreme Court held that the admissions programs at Harvard and UNC violated the Equal Protection Clause of the Fourteenth Amendment. The Court’s ruling is, of course, binding on the parties themselves. However, this was no narrow decision. The broad constitutional mandate of colorblindness underlying the majority opinion is applicable to the University of Virginia, as well.
On August 1, 2023, in response to the landmark decision, university leaders issued a statement outlining the institution’s new admissions procedures. “The Court has made it clear,” the statement read in part, “that colleges and universities may not consider race, for its own sake, in their admission decisions. […] We will follow the law.”
However, the statement went on: “We also will do everything within our legal authority to recruit and admit a class of students who are diverse across every possible dimension and to make every student feel welcome and included here at UVA.”
First, a commitment to merit-based admissions. “Our admission practices will continue to assess each candidate for their capacity to succeed academically at the University, and we will continue to offer admission only to candidates we believe to be academically qualified.”
Second, the shielding of racial or ethnic data from the view of admissions officers. “No one who assesses candidates for admission at UVA will have access to any self-disclosed “checkbox” information regarding the race or ethnicity of the candidates they are considering.”
Third, an essay prompt in which applicants are encouraged to discuss race or ethnicity. “We will include an essay prompt on our Common Application for undergraduates and other relevant application forms that provides an opportunity for students to describe their experiences. […] To the extent a candidate’s race or ethnicity is disclosed through this process, that information only will be considered as it relates to that person’s unique ability as an individual to contribute to the University, and not on the basis of race or ethnicity alone.”
The question before us now is whether these new procedures represent a sincere commitment to colorblind admissions or a mere gesture toward superficial compliance. The people of Virginia have a stake in the answer.
Past admissions practices at the university can fairly be criticized. For about its first 150 years, the university admitted only white men. In response to the civil-rights movement, it opened its doors to all students, regardless of race, sex, or national origin. For the past 50 years or more, the university has worked diligently to recruit qualified students from all walks of life.
Today, through “Access UVA,” the university brags that students are accepted on their academic merit, regardless of their ability to pay, and that 100 percent of families’ financial needs are met through scholarships, grants, work-study, and low-interest loans.
If this is true, then the university should have no difficulty developing an admissions program that is free from all racial preferences and that is in full compliance with the law. Nothing in the Court’s ruling curtails the university’s ability to welcome a diverse student body.
A university cannot be expected to compensate for all inequities in the applicant pool.That said, the university cannot be expected to compensate for all inequities in the applicant pool. Over 130 school districts in Virginia are charged with the responsibility of preparing talented students for the rigors of college education. Success is not evenly distributed—racially, socially, economically, or geographically.
Moreover, the University of Virginia is not the only venue for attaining a college education. There are 84 public and established private colleges and universities in Virginia, providing students from all walks of life and with varying degrees of academic preparation with an opportunity to earn a college degree. A recent report by the Lumina Foundation found that 59.3 percent of working-age Virginians had earned a college degree or postsecondary certificate or credential by 2021. Nonetheless, as the commonwealth’s flagship university, UVA has every right, and perhaps a duty, to set a high bar for admissions.
In fairness to the university’s admissions officers, selecting the few to be accepted from a large pool of qualified applicants requires both judgment and wisdom. An applicant’s readiness for the rigors of college-level studies is one factor, and his or her SAT scores are a good measure of that readiness. Nevertheless, the university has already eliminated the submission of SAT scores as a mandatory requirement for admission.
An applicant’s character is another factor that admissions committees must consider. To the extent that overcoming adversity in life is one indication of strong character, the Supreme Court has given it sanction.
However, an applicant’s character cannot be reduced to the single trait of courage. (See, e.g., Character and the Future of the American University, Pepperdine University Press, 2023.) Substantial judgment must still be brought to bear as applicants’ various abilities and characteristics are weighed and measured.
Thus, in the final analysis, many “qualified” applicants will surely be rejected. No admissions policy, legal or illegal, can alter this fact.
University leaders have made it clear that, despite the Court’s prohibition on the use of racial preferences, achieving a diverse student body remains a central tenet of the revised admissions policy.
The University of Virginia measures no “diversity” factors except race and ethnicity.In a statement published on June 29, 2023, the university asserted that its “commitment to diversity, in short, is not diminished, even if our ability to pursue that goal is constrained. Diversity, in all its forms, is critical to the educational experience, because students learn not just from their professors but from each other.”
Yet hadn’t the Supreme Court just rejected that rationale for race-conscious admissions?
Writing for the majority, Chief Justice Roberts stated that such interests “cannot be subjected to meaningful judicial review.” Although the alleged educational benefits of diversity “are commendable goals, they are not sufficiently coherent for purposes of strict scrutiny.”
Furthermore, the University of Virginia measures no “diversity” factors except race and ethnicity—strange behavior for an institution that ostensibly values “diversity in all its forms.” The UVA Diversity Dashboard lists nine racial/ethnic categories and nothing else. Yet, as the Court held in SFFA, “it is far from evident … how assigning students to these racial categories and making admissions decisions based on them furthers the educational benefits that the universities claim to pursue.”
Indeed, if the university is truly committed to admissions processes that are in full compliance with the Constitution, then administrators and the Board of Visitors (i.e., the trustees) should do the following:
- abolish all racial or ethnic check-boxes on the application (not just hide them from view by some);
- abolish the collection of racial or ethnic classifications by any other means;
- take down and permanently prohibit any further use of the UVA Diversity Dashboard.
So long as racial/ethnic data are collected, no one in Virginia can be confident that racial preferences will be, or have been, abolished at UVA.
Admissions Essay Prompts and the “Limited” Consideration of Race
As many have correctly noted, the Supreme Court authorized institutions of higher learning to consider “an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise”—provided this individual experience is “tied to that student’s unique ability to contribute to the university.”
In other words, the Court did not sanction the use of racial information to promote diversity but to cast light instead on an applicant’s character.
The Court did not sanction the use of racial information to promote diversity.As a practical matter, one wonders how many high-school seniors actually think about, much less are able to articulate, how they will “contribute to the university.” Most, I suspect, are thinking about how the university will contribute to them. They will be paying for an education, and they will expect to get their money’s worth.
More important, however, is the fact that the Court has explicitly limited how such admissions essays can be used:
Universities may not simply establish through application essays or other means the regime we hold unlawful today. […] What cannot be done directly cannot be done indirectly. […] In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race.
UVA must take care that any race-focused admissions questions stay on the legal side of the Court’s new standard.
I would like to believe that the university will act in good faith to comply with our colorblind Constitution and not game the system to achieve some arbitrary target of diversity. However, for the reasons expressed herein, I remain skeptical. In any case, the people of Virginia should not have to wait for some future plaintiff to allege discrimination and endure years of litigation to find out from the Supreme Court whether UVA’s revised admissions program survives strict scrutiny and complies with the Constitution. Rather, the university should take voluntary action to comply with the spirit and letter of the SFFA ruling.
As a first step, the Board of Visitors should require total transparency within the admissions program, including the rationale for suspending the SAT requirement. Let the sunlight in, and let “we the people” strictly scrutinize the process. Undoubtedly, reasonable people will disagree with one or more aspects of UVA’s admissions processes. Other preferences, such as legacy admissions, will be hotly debated. But adjustments will be made, and, over time, a broad consensus will emerge.
Next, the University of Virginia should take the lead in academia by abandoning all forms of racial or ethnic classifications, thus boldly validating the self-evident truth that all men are created equal. Doing so could yield results of immeasurable value to the commonwealth and the nation—a great and good enduring legacy of equality under the law.
As Martin Luther King Jr. said more than 50 years ago, “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character.” The United States Supreme Court has now declared that, consistent with our colorblind Constitution, that day has come.
Walter L. Smith is a board member of the Jefferson Council for the University of Virginia.