Background Information
Middlebury College Institutional Position
The Supreme Court has rejected the use of race as a “plus” factor in higher education admissions, ending an era of inclusive admissions practices as we know it. We will abide by the law as we stay true to our mission and commitment to create and maintain an inclusive community with full and equitable participation for all. The majority opinion concludes by saying that “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.” The justices’ decisions considered the impacts on students seeking admission to institutions of higher education as well as the voices of those who filed amicus briefs in the cases, including Middlebury College. As stated in our Action Plan for Anti-Racism, Diversity, Equity, and Inclusion, “The work of promoting racial justice, eliminating oppression, and creating a more equitable and inclusive community falls on all of us.”
As shared in our spring message about inclusive admissions, we know that students from diverse backgrounds who learn from each other and are exposed to a variety of life experiences, talents and interests are better prepared and more successful in our global network. Because creating a robust and inclusive public square has always been Middlebury’s mission, it will continue to be a central part of how we evaluate applicants for admission.
Case History
In 1978, a plurality of the U.S. Supreme Court ruled in Regents of the University of California v. Bakke that the use of racial quotas in the admissions program of any institution of higher education is unconstitutional as a violation of the Equal Protection Clause; within this decision, they also laid the foundation for constitutionally acceptable race-conscious admission policies, stating that diversity within a student body is “a compelling interest” and that in “an admissions program, race or ethnic background may be deemed a ‘plus’” factor, insofar that it does not completely determine the acceptance or rejection of an applicant.
Two cases in 2003 built further upon this legal precedent, Gratz v. Bollinger and Grutter v. Bollinger. Both cases dealt with the admissions practices of the University of Michigan—Ann Arbor, with Gratz pertaining to the undergraduate school and Grutter the law school. The undergraduate admissions system for the University of Michigan used a process in which each applicant needed a total of one hundred points to be offered admission to the school; points were awarded based on a variety of accomplishments, talents, and characteristics. In the interest of creating a diverse student body to achieve educational benefits, they automatically awarded every applicant of an underrepresented minority twenty points. In contrast, the University of Michigan Law School conducted individualized and holistic review of each of their applicants, considering a variety of “plus” factors in addition to race. The Court ruled against the practices of the undergraduate school and affirmed those of the law school. As a result, holistic race-conscious admission programs similar to the program reviewed in Grutter were explicitly authorized, although all uses of racial classifications are subject to the “strict scrutiny” standard for racial classifications under the Equal Protection Clause.
There are two parts to the “strict scrutiny” standard: the goal of the government must be a “compelling interest” and the means used to achieve it must be “narrowly tailored.” Both prongs of this standard must be satisfied for the racial classification to survive a challenge to a program’s constitutionality. A compelling interest refers to “whether the goal the policy is trying to achieve is sufficiently important to justify a particular use of specific classification” and the narrow tailoring test is “whether the policy achieves its goals with as little negative effect as possible on other groups.” Since Bakke, diversity within a student body has recognized as a compelling interest; the question in many lawsuits regarding race-conscious admissions is whether an institution’s policies are narrowly tailored enough to avoid creating unfair advantages for certain applicants.
Middlebury College, along with 32 other small, highly selective, private colleges filed an amicus curiae brief supporting Harvard College’s defense in the SFFA v. Harvard case. Middlebury was not a party in the lawsuit and was not directly involved. Instead, “amicus curiae” briefs reflect the experience and arguments of “friends of the Court” and are common in Supreme Court cases, which have national impact. Middlebury, along with peer institutions, argued that the overturning of Grutter would be detrimental to admissions programs of institutions of higher education, especially “small private colleges that have applied Grutter faithfully and successfully for nearly twenty years.” The group of amici colleges emphasized the many educational benefits that a diverse student body creates, including how it “meaningfully improves learning experiences, complex thinking, and non-cognitive abilities,” and “generates pedagogical innovations and decreases prejudice.” Therefore, Middlebury College and similar institutions argued that there is still a substantial and sufficient compelling educational interest in creating and maintaining diversity within their institutions. Furthermore, “these benefits are especially pronounced at liberal arts colleges and small universities, where smaller class sizes lead to greater engagement among diverse students.” The brief expressed that the colleges have “repeatedly concluded that race cannot be excluded entirely from admissions considerations if they are to enroll the diverse classes critical to their educational missions.” The brief noted that since there currently exist no fully effective race-neutral alternatives to this end, amici’s use of race in their admissions policies are indeed necessary and thus ought to be seen as narrowly tailored by the Court.
Nearly 100 other amicus briefs were filed in the SFFA v. Harvard and UNC cases by various stakeholders in the community from public universities to government agencies to private corporations. A guide to the amicus briefs in the affirmative-action cases found on SCOTUSblog outlines the major amicus briefs and categorizes them by argument.
What’s Next?
Now that the Court has ruled against use of race as a “plus” in admissions decision-making, Middlebury will abide by the Court’s decision and adapt our policies, programs, and practices. There is already extensive use of race-neutral alternatives in admissions, including at Middlebury, ranging from emphasis on identifying first-generation college students, seeking geographic diversity, collaborating with organizations like the Posse Foundation, and other ways to increase the range of students who learn about and apply to four-year higher education institutions.
The admissions program of Colorado University Boulder is an example of a race-neutral alternative in practice. CU Boulder views its applicants’ financial need as well as statistical indicators of their socioeconomic status when deciding their admission. Using these data points, the school can generate two important metrics: the Disadvantage Index, which quantifies the socioeconomic obstacles an applicant has faced throughout their academic career, and the Overachievement Index, which estimates the applicant’s academic success with respect to these obstacles. These indexes allow the school to flag applicants who outperform their peers from similar socioeconomic backgrounds. Initial research found that these indexes resulted in a student body with a higher percentage of students of underrepresented minority status than CU Boulder’s past race-based affirmative action programs. While the findings are limited to CU Boulder’s applicant demographic and need-conscious status, its supporters argue that it “suggests that an end to race-based affirmative action need not be devastating for campus diversity.”
Middlebury will continue to look for opportunities and holistic approaches that offer access to a wide range of students with certain experiences, like those overcoming racial bias or discrimination, and will strive to ensure that the population of Middlebury is a reflection of the country and world we live in, and the leadership we wish to see in our institutions. Middlebury has made great strides in recruiting amazing, more diverse classes and providing an enriching student learning experience for all. Our vision of creating a robust and inclusive public sphere where our students can contribute to solving the world’s most challenging problems demands that we continue to seek talent everywhere from all walks of life.
Where Race-Conscious Admissions Policies are Banned
The use of race in admission review is currently banned by local legislation in eight states: Arizona, California, Florida, Michigan, Nebraska, New Hampshire, Oklahoma, and Washington. In a brief supporting the preservation of Grutter, the University of Michigan notes that after the banning of affirmative action in the state, the University’s Black undergraduate enrollment declined from 7 percent in 2006 to 4 percent in 2021, and its Native American enrollment dropped from 1 percent to 0.11 percent.
In another brief supporting Harvard and UNC, the President and Chancellors of the University of California posit that despite the “institution of numerous race-neutral measures to increase diversity over the past 25 years… [the school system] still struggles to enroll students who can offer underrepresented perspectives, even as California itself becomes more and more diverse.” At the University of California Los Angeles (UCLA), the banning of race conscious admission programs led to a significant decrease in Black enrollment, dropping to only 96 Black students in a 2006 freshman class of nearly 5,000. Within the UCLA system, freshmen enrollees from underrepresented minority groups have “dropped by 50% or more at UCLA’s most selective campuses.” Elsewhere in the state, the Black enrollment at any California State University has similarly dropped from 8 percent in 1997 to 4 percent in 2018, as stated in an amicus curiae brief submitted by a group of 25 California-based lawyer and civil rights organizations.