ABSTRACT
This article examines secret admissions – an ironic term I use to refer to the mysterious nature of holistic review within universities’ admissions policies. In particular, I examine legal controversies that have implicated race as part of holistic review. I consider the prospect for future controversies after the U.S. Supreme Court’s recent ruling in Students for Fair Admissions v. Harvard (2023), which outlawed race-conscious admissions policies. Additionally, I review the history of holistic admissions, and I examine how the secrecy in holistic review has influenced and been influenced by the consideration of race in admissions. My article discusses the pros and cons of flexible, individualized consideration of race within holistic review – a policy that was previously endorsed by the Supreme Court in Grutter v. Bollinger (2003). I emphasize the fact that holistic review obscures both the impact of race on individual admissions decisions and the manner in which various admissions criteria are integrated to make such decisions. I argue that such obfuscation aided Students for Fair Admissions (SFFA) in advancing its case from the lower courts to the Supreme Court. I also consider the potential for surreptitious use of race in admissions in a post-SFFA admissions world, which could lead to more scrutiny of holistic review and consequent litigation. I do all of this by reviewing scholarly and judicial discourse on holistic admissions and by sharing various personal anecdotes-from conversations about my research on race-conscious admissions policies to my experiences serving on admissions committees to stories from my students about their college and law school applications.
INTRODUCTION
The past summer, with its consolidated ruling in Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina at Chapel Hill (hereinafter referred to collectively as SFFA), the U.S. Supreme Court ended the use of race as a factor in university admissions. The Court did not explicitly say it was overturning its 2003 ruling in Grutter v. Bollinger, but in my view, it effectively did so. In Grutter, the Court held that the educational benefits of “student body diversity” were a compelling state interest, and that universities could use race-conscious admissions policies to attain those benefits. Grutter‘s narrow tailoring requirements dictated that race could only be used as one flexible factor considered individually for each applicant in a holistic review process; that universities must stop using race-conscious policies if they could attain sufficient diversity without using race; and that race-conscious policies could not “unduly burden individuals who are not members of the favored racial and ethnic groups.” But in his SFFA majority opinion, Chief Justice Roberts changed that last narrow tailoring requirement in a way that precludes any use of race: he essentially transformed no “undue burden” into no burden at all. The Chief Justice stated that “[c]ollege admissions are zero-sum” because percentages add up to one hundred: an advantage that increases the proportion of admitted students from one group will necessarily decrease the proportion of admitted students from another group. The Court ruled in favor of SFFA in part because “Harvard’s [race-conscious policy] overall results in fewer Asian Americans… being admitted” than would be admitted absent use of race. Any use of race at all creates such a “burden” on some group. Thus, SFFA nullified even the narrow parameters laid out in Grutter.
Nevertheless, one important aspect of Grutter‘s legacy remains: its endorsement of holistic review. Holistic review in admissions—the flexible, individualized consideration of various nonacademic factors in addition to academic criteria—was around long before Grutter. But the late Justice Sandra Day O’Connor’s Grutter majority opinion brought significantly more attention to holistic review. Grutter upheld the University of Michigan Law School’s holistic admissions policy, which considered race on an individualized basis, as one factor among many criteria, and with potentially variable weight for each applicant. Simultaneously, Justice O’Connor’s majority opinion in Gratz v. Bollinger rejected the University of Michigan College of Literature, Science, and the Arts (LSA) admissions policy, which used race mechanically by giving 20 points on a 150 point scale to all underrepresented minority applicants. And Justice O’Connor also affirmed the Court’s 1978 ruling in Regents of the University of California v. Bakke, where the Court struck down the University of California, Davis School of Medicine special admissions program which had reserved sixteen seats in a class of one hundred for underrepresented minority applicants.
Justice O’Connor’s preference for Grutter‘s holistic individualized review, along with her rejection of the Bakke set-aside and Gratz point system, had many consequences. After Grutter, if a university wanted to use race-conscious admissions policies, holistic review was not merely an option: it was a constitutional mandate. But although that mandate is now obsolete, holistic review is not. Most selective institutions use some form of holistic review in their admissions processes, and they will continue to do so even without considering race. Flexible, individualized review of applicants, based on a plethora of characteristics, will become even more important in the post-SFFA world, as institutions seek to use various other criteria to attain racially diverse student bodies. And this will amplify attention given to another intriguing feature of holistic admissions policies: their obscure, mysterious nature. Media coverage of SFFA often highlighted the lack of transparency in holistic admissions policies. Such obscurity is an inherent feature of a process that affords so much flexibility to admissions reviewers who are essentially instructed to use their own judgments (and biases) in evaluating each individual applicant. How exactly admissions decisions are made through holistic review is perhaps the “best kept secret” in higher education.
In this article, I will explore such secret admissions: an ironic term I use to refer to the mysterious nature of holistic review itself—the largely idiosyncratic process by which various criteria are weighed, differently for each applicant, to grant or deny each of them admission. Many applicants know the criteria used in holistic review, which include grades, test scores, extracurricular activities, essays, personal hardships, and letters of recommendations. Universities list such criteria on their websites. However, the way that these criteria are integrated to make decisions is a mystery to most. As part of secret admissions, I focus in particular on the flexible, individualized use of race endorsed by Grutter, which obscures the impact of race on any individual admissions decision. Justice O’Connor preferred this secrecy, because she believed that it prevented racial stigma and balkanization. But I argue that SFFA took advantage of this obfuscation in its litigation. And in a post-SFFA admissions regime, allegations of the surreptitious, illegal use of race could lead to even more litigation. My article thus examines how the secrecy in holistic review has influenced and been influenced by the consideration of race in admissions, and how all of this may play out in a post-SFFA admissions world. It does so not only by reviewing scholarly and judicial discourse on holistic admissions, but also through personal anecdotes—from conversations about my research on race-conscious admissions policies to stories from my students about their applications to my own experiences serving on admissions committees.
By focusing on secret admissions and its consequences, I do not aim to rebuke holistic review completely or to argue that universities should stop using it altogether. I acknowledge that holistic review has positive attributes. It allows admissions committees to consider talents and potential contributions by applicants that are not readily measured by academic criteria, and it allows individually tailored assessment of applicants’ experiences and challenges, all integrated together in a flexible manner. Universities should consider any factors that relate to an applicant’s ability to make contributions to their campus activities or to society more generally. Nevertheless, my article serves as a cautionary tale. Because holistic review in admissions is likely here to stay, I aim to illustrate some of the pitfalls that derive from its secretive nature. My hope is that universities take these pitfalls into account when using holistic review and aim to mitigate their potential negative consequences, through transparency and other means.
Part I explains in detail what “holistic” review in admissions means. It looks at the history of admissions policies at American universities, and it gives a basic overview of holistic review. This part illustrates that even scholars with expertise in university admissions view holistic review as an obscure process with little transparency. Part II evaluates this “secret” admissions process more closely. It considers the virtues and vices of having a secretive and obscure process for reviewing applicants, focusing on race-conscious admissions and Justice O’Connor’s choice of the Grutter plan over the Gratz plan and the Bakke set-aside. This part shows that Justice O’Connor preferred to make race-conscious admissions policies less visible, and that doing so was consistent with her prior race jurisprudence. It also reviews how scholars and commentators reacted to this preference for obfuscation over transparency. Part III considers how the secretive nature of holistic review facilitated the legal challenge by SFFA. It goes through the SFFA litigation from the early stages, and it delves into how the Supreme Court treated holistic review in its SFFA opinion. This includes the SFFA majority’s view that applicants could still discuss racial experiences in their personal essays—a holding that itself obscures the difference between legal and illegal consideration of race in admissions. Part IV then examines what may happen if opponents of affirmative action think that universities are still using race itself as an admissions factor. It considers accusations that UCLA was doing so in 2008, long after California had banned race-conscious admissions. It delves into the investigation of those accusations. This part also envisions what might happen if such accusations of surreptitious use of race are translated to litigation. Strict scrutiny would not apply to post-SFFA litigation of this nature, because universities would have facially race-neutral admissions policies and deny using race. Plaintiffs would have the burden to prove that universities are doing so. Nevertheless, institutions tend to be risk averse. This part also argues that universities may choose to “de-quantify” admissions—to reduce use of numerical scales such as standardized test scores and numerical ratings of holistic criteria—because plaintiffs have used such metrics to illustrate racial differences. In the Conclusion, I call for universities to be more transparent about their holistic admissions policies, not only to avoid legal controversies, but also to promote equity. I also draw upon a personal anecdote—my interaction with a student—to examine how secret admissions may impact applicants themselves both their access to information and the personal information they may feel compelled to reveal. Holistic admissions will always have pitfalls, but my hope is that universities will make good-faith efforts to address these as best they can.
I. THE BEST-KEPT SECRET: HOW DOES HOLISTIC REVIEW WORK?
Whenever I talk about my scholarship on affirmative action with laypeople, I am reminded that academia is an elite, rarified bubble. Most Americans, including those who go to college, do not encounter race-conscious admissions policies at all. Most institutions of higher education did not use them even before SFFA. And even students who went to selective universities that used race-conscious admissions often did not understand how it worked. Some were not even aware of its existence, even as they applied to college and law school. A few years ago, when I told a group of new law students that my research focused on race and university admissions, their first assumption was I meant invidious racial discrimination. I had to clarify for them that I was not claiming that Harvard intentionally discriminated against Black students in its admissions process. Rather, I told them, my work focused on defending Harvard’s ability to consider an applicant’s race when making admissions decisions, in order to benefit underrepresented students of color, including Black students.
Even when they understand I am talking about affirmative action, the first thing laypeople often think is “quota.” Numerical set-aside plans are simple enough to understand. They form an initial reference point, and nonlawyers can be forgiven for not knowing that Bakke banned such admissions plans. It is also relatively easy to understand a mechanical point system, such as the one rejected in Gratz. Both of these plans involve using race as a category alone, where checking a particular box yields the same benefit for all applicants who check it. This is something that laypeople can envision without much difficulty.
However, I get much more puzzled looks when I try to describe the admissions policy at issue in Grutter. It is more difficult to comprehend a “highly individualized, holistic review of each applicant’s file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment” and “is flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight” in order to “adequately ensures that all factors that may contribute to student body diversity are meaningfully considered alongside race in admissions decisions.” Here, checking the box alone does not explain what happens. My sense is that laypeople do have some idea of what I am talking about—that admissions committees consider nonacademic criteria in addition to grades and test scores. But they cannot easily fathom how race factors into such a process in a flexible, individualized manner that treats applicants fairly and equally. They are at a loss for how holistic review works in practice. How does an admissions committee member compare one applicant who played chess with another who played the trombone in the marching band, if both excelled at those activities and were comparable otherwise? If asked to speculate, they may say that a committee member who plays chess would pick the former, while one who plays musical instruments will pick the latter. And similarly, they may speculate that an admissions committee member will favor applicants who share their racial background. But I don’t think they really believe that holistic review is so crude or simple. It’s just mysterious.
The origins of holistic review itself date back a century. In his 1980 article, “The History of University Admissions,” Professor Laurence Veysey discusses five phases of American university admissions. The first two phases noted by Professor Veysey did not involve much if any holistic review. He does note that the initial phase, “the long reign of the individual entrance exam in the old-time college, focusing on Greek, Latin, and mathematics,” had loopholes that allowed admission “upon conditions” for some privileged applicants and some applicants from “less prominent backgrounds,” although these were not common circumstances. The second phase, prompted by increasing student numbers in the late nineteenth century, was the development and initial use of standardized admissions tests. Here, Professor Veysey notes that university admissions also “saw deemphasis of the classic languages as barriers to elite access and, at the same time, the creation of more-standardized yardsticks such as the certification of approved secondary schools (allowing students’ grade records to serve in lieu of any exam).” Thus, although standardized tests were used, they were “no insuperable hurdle” to the admission of legacies, athletes, and other privileged applicants.
It was the third phase beginning in the 1920s, where the process we now call “holistic review” (although not the term itself) began to emerge. Professor Veysey attributes this in large part to anti-Semitism. He describes the newfound “emphasis on ‘character and fitness’,” which resulted in the reduction of Jewish students admitted to elite universities such as Harvard, Yale, and Princeton. At Harvard, character and fitness criteria included “five pillars: academic promise, personal qualities, health and athleticism, geographic distribution, and Harvard parentage.” A century later, SFFA would draw on this history to analogize between those earlier practices against Jewish applicants and alleged limits on admission of Asian American students to Harvard today.
Professor Veysey’s fourth phase came in the post-World War II period, when anti-Semitism was less palatable, the G.I. Bill was passed, and the Cold War-driven, “post-Sputnik” need to compete technologically with the Soviet Union resulted in renewed emphasis on “intellectual meritocracy.” He describes this phase as “surprisingly brief”: perhaps it was mostly a recognition of changing U.S. demographics and global concerns of postwar times.
The fifth phase came in the wake of the Civil Rights Movement, which was also spurred on by the Cold War. This was the origin of affirmative action in admissions, with an emphasis on “equality of individual opportunity.” Interestingly, Professor Veysey places Bakke in this phase, but he does not discuss “diversity” or “holistic” admissions.
Nevertheless, I would argue that Bakke brought about a sixth phase of admissions—one where the educational benefits of diversity became key. Justice Lewis Powell’s opinion in Bakke drew upon the academic freedom of universities—”a special concern of the First Amendment,” which included “[t]he freedom of a university to make its own judgments as to education includes the selection of its student body.” In this context, Justice Powell approved of the use of race as one “plus” factor, alongside other criteria that could enhance student body diversity.
In their recent, extensive scholarly literature review on holistic admissions, Jolene Maude and Professor Dale Kirby also refer to Bakke as the “landmark legal case [that] set the stage for modern day holistic admission.” Justice Powell’s opinion in Bakke did not use the term “holistic,” but universities and courts came to use the term to describe the type of admissions plan he endorsed. Justice Powell described Harvard’s admissions policy as a model, noting:
[s]uch qualities could include exceptional personal talents, unique work or service experience, leadership potential, maturity, demonstrated compassion, a history of overcoming disadvantage, ability to communicate with the poor, or other qualifications deemed important… [and]… is flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight… [T]he weight attributed to a particular quality may vary from year to year depending upon the “mix” both of the student body and the applicants for the incoming class.
In 2003, Grutter brought five votes to Justice Powell’s plurality Bakke opinion. Justice O’Connor’s majority opinion referred explicitly to “highly individualized, holistic review of each applicant’s file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment.” The Court specifically distinguished the Grutter (holistic review) plan from the Gratz (mechanical point system) plan because the former used race flexibly, in an individualized manner. This was in contrast to the mechanical application of race in the Gratz plan, where all minority applicants received exactly the same number of points. Under an admissions policy with holistic review, race is considered alongside other admissions factors, which could include not only academic criteria, but also socioeconomic status, geography, extracurricular activities, essay scores, personal characteristics, letters of recommendation, and any other components of an individual’s application. Universities can and do inform applicants of the holistic factors they consider in the admissions process. But the weight given to any of these factors can be different for each applicant, based on the discretion of admissions reviewers. And it is this variability in the way that admissions factors are weighted, along with the discretion that reviewers have to use their own judgments (and biases) in weighing each factor, that makes holistic review seem so mysterious in its implementation.
Justice O’Connor’s majority opinion in Grutter—the Supreme Court’s first ruling on race-conscious university admissions to use the term “holistic”—raised the public profile of holistic admissions significantly. Holistic review had resolved a major constitutional dispute, defining how race could be used as a “plus” factor in admissions. Attention to holistic review increased even more, as scholars and commentators have sought to understand how it works and how it incorporates race and other criteria. Yet, even with such attention, the definition of holistic review remains hazy. The College Board itself notes that “no single definition [of holistic review] can fully capture the legitimate variability among colleges and universities that manifest varied missions and admissions aims.”
As one starting point, the College Board gives a basic definition of “holistic admissions” as “a flexible, highly individualized process by which balanced consideration is given to the multiple ways in which applicants may prepare for and demonstrate suitability as students at a particular institution.” It recommends that holistic review in practice should have three features: (1) alignment with an institution’s mission; (2) evaluation of both student ability to succeed in the educational curriculum and to make contributions to the academic community; and (3) consideration of “multiple, intersecting factors—academic, non-academic, and contextual—that enter the mix and uniquely combine to define each individual applicant.” But beyond the academic measures, what are these “multiple, intersecting factors” and how are they considered?
Maude and Professor Kirby divide nonacademic criteria into two categories: “experiences” and “attributes.” Experiences are life occurrences that have shaped an applicant’s perspective and/or conferred particular knowledge and skills. These may include extracurricular endeavors such as “community involvement, leadership, professional activities,” challenges and hardships that applicants have faced, and obstacles they have overcome. Attributes include “race/ethnicity, and personal qualities, characteristics, abilities, or skills that applicants bring with them to the program.”
The lay public has a much better understanding of academic criteria, because practically everyone with any schooling has been formally evaluated and ranked with grades and standardized test scores. “Nonacademic” and “contextual” factors, on the other hand, seem more opaque: even when we know what they may include (extracurricular activities, personal experiences, etc.), there is no accessible or intuitive ranking scale to understand their role in evaluating applicants. Professors Michael Bastedo and Nicholas Bowman, along with Kristen Glasener and Jandi Kelly, give some basic guidance regarding how admissions committees can consider these various factors. Based on their study, they describe three different types of holistic review: (1) “whole file”—”considering all parts of the application and weighing them together for a result”; (2) “whole person”—”treating the applicant as a unique individual in addition to considering all elements of the file … [and] evaluat[ing] academic achievements in light of the applicant’s character, personality, or ability to contribute to the community in a unique way”; (3) “whole context”—”consider[ing] all elements of the application and valu[ing] treating applicants as unique individuals in the context of the opportunities available in their families, neighborhoods, or high schools… tak[ing] into account ongoing hardships, extenuating circumstances, or other contextual factors.”
Nevertheless, Professor Bastedo and colleagues also note that “[a]dmissions officers themselves simply do not have a common definition of holistic review beyond ‘reading the entire file.’” They note that there is “significant confusion among students, parents, and the public about holistic admissions.” Mere articulation of factors considered in holistic review and general statements about how applicant files are reviewed does not significantly mitigate this confusion. The root of mystery surrounding holistic review comes from lack of consistency in its implementation. Each school uses a different type of review system, each admissions reviewer has their own subjective biases and manner of weighing various criteria, and each applicant is treated differently and individually for the purpose of weighing these criteria. Holistic review is inherently mysterious because it varies so much from school to school, reviewer to reviewer, and applicant to applicant.
So why then, in the context of a highly charged issue, such as the constitutionality of race-conscious admissions policies, did Justice O’Connor choose the Grutter (holistic review) plan over the Gratz (mechanical point system) plan? Couldn’t the Gratz plan also attain racial diversity and do so in a more transparent and comprehensible manner?
II. WHY SECRET ADMISSIONS? (AND WHY NOT?)
One reason for holistic review is readily apparent. More than any other system, it allows admissions committees to consider, in a flexible manner, a wide variety of factors beyond academic criteria, ranging from other skills and talents to applicants’ backgrounds and demonstrated resilience. Most of us would agree that grades and standardized test scores do not fully capture an applicant’s potential, either to enrich campus life or to attain academic and professional success. In Grutter, Justice O’Connor also noted the benefits of admitting students with different experiences to the educational environment of universities: “classroom discussion is livelier, more spirited, and simply more enlightening and interesting” when the students have “the greatest possible variety of backgrounds.” She cited various studies illustrating how such diversity leads to better “learning outcomes” and “better prepares students for an increasingly diverse workforce and society.” And she tied these benefits to professional settings, noting that “major American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.” Universities could thus seek to enroll a “critical mass” of underrepresented students—enough so that these students wouldn’t “feel isolated or like spokespersons for their race.” If necessary, they could use race-conscious admissions for that purpose.
But although Justice O’Connor approved of using race to attain the educational benefits of diversity, she did so reluctantly. Her disdain for race-conscious policies was long established, and Grutter was the first and only case where she voted to uphold such a policy. Beyond flexible, individualized review, Grutter imposed many other limitations on the use of race. Justice O’Connor made it clear that universities should prefer race-neutral alternatives to attain diversity, and that they had to phase out use of race eventually. Grutter also included an aspirational statement that they may be able to do so within 25 years.
Because of her disdain for using race, Justice O’Connor viewed secrecy itself as a virtue when doing so. She chose the Grutter plan over the Gratz plan partly on that basis. Professor Heather Gerken characterized both Justice Powell’s approach in Bakke and Justice O’Connor’s view in Grutter as “something akin to a ‘don’t ask, don’t tell’ approach to race-conscious decisionmaking: use race, but don’t be obvious about it.” Justice O’Connor disliked race-conscious policies because she believed they were divisive and stigmatizing. Her prior race jurisprudence indicated a particular concern for stigma and stereotyping. In City of Richmond v. J.A. Croson Co., she described the harm of government racial classifications:
Classifications based on race carry a danger of stigmatic harm… they may in fact promote notions of racial inferiority and lead to a politics of racial hostility… reinforce common stereotypes holding that certain groups are unable to achieve success without special protection based on a factor having no relation to individual worth.
Justice O’Connor was particularly concerned with the message sent by government action. In her dissenting opinion in Metro Broadcasting, Inc. v. FCC, she noted that “[s]ocial scientists may debate how peoples’ thoughts and behavior reflect their background, but the Government may not allocate benefits and burdens among individuals based on the assumption that race or ethnicity determines how they act or think.” She reiterated this view in Shaw v. Reno, emphasizing that “[r]acial classifications pose the risk of lasting harm to our society… [because] [t]hey reinforce the belief that individuals should be judged by the color of their skin.” She also expressed the concern that government use of race may “balkanize us into competing racial factions.”
In evaluating Justice O’Connor’s majority opinion in Shaw, Professors Richard Pildes and Richard Niemi define an “expressive harm” as a harm “that results from the ideas or attitudes expressed through a governmental action, rather than from the more tangible or material consequences the action brings about.” They argue that Justice O’Connor’s constitutional jurisprudence shows “a general attentiveness to the expressive dimensions of public action.” The meaning conveyed by public action must respect “relevant public values.” Because Justice O’Connor viewed racial classifications as harmful, she thought that if the government had to use them, they should remain obscure and out of the public view. That is one reason why she opted for the Grutter plan over the Gratz plan: she believed the former involved less racial stigma and stereotyping of individuals and groups. Justice O’Connor thought the harm of race-conscious policies was attenuated when embedded within holistic review, because the use of race was less obvious, particularly on the level of individual applicants. In the Grutter plan, every individual was treated differently, and all members of a group did not receive the same benefit. Holistic review does not reveal whether race mattered a little bit, a lot, or not at all for the admission of any given applicant. And Justice O’Connor valued such a process not only because of its flexibility, but also because of its secrecy. As Professor Michelle Adams noted, the Grutter majority “was more concerned with how the Law School’s application process actually appeared and the message that it sent to the public than with its impact on any particular white applicant… the message communicated by the governmental action was paramount.” In a sense, that message seemed contradictory: universities can admit to using race but must simultaneously obscure how race is used.
Some scholars have supported this view and argued in favor of more obscure race-conscious admissions policies, based on the potential for negative public reaction to explicit use of race. Twenty years before Grutter, the late Professor Paul Mishkin contended that “less explicitly numerical systems” of admissions minimize the stigmatization of underrepresented students as beneficiaries of separate privileges. Professor Mishkin asserted that:
The description of race as simply “another factor” among a lot of others considered in seeking diversity tends to minimize the sense that minority students are separate and different and the recipients of special dispensations; the use of more explicitly separate and structured systems might have the opposite effect.
Similarly, Daniel Sabbagh has argued that the “very nature of what may be conceived as the ultimate goal of affirmative action—the deracialization of American society… would make it counterproductive to fully disclose that policy’s most distinctive and most contentious features” and that the Supreme Court has “made a significant, yet underappreciated, contribution [by] … minimizing the visibility and distinctiveness of race-based affirmative action.”
More broadly, Professors Jack Balkin and Reva Siegel have contended that “[l]aws dismantling status hierarchies cannot redistribute opportunities to subordinate groups too transparently” because doing so may generate backlash. Professors Balkin and Siegal note that subordinate groups have often made gains through doctrines and policies that benefited dominant groups as well, thus obscuring any relative redistribution. Because Grutter‘s endorsement of holistic review also emphasized consideration of factors besides race, one can envision and accurately describe the Grutter plan as potentially beneficial to applicants of all racial backgrounds.
But there are also scholars who have critiqued the choice of the Grutter holistic admissions plan over the Gratz point plan. And those critiques have largely dealt with the issue of secrecy. Professor Cristina Rodriguez argued that embedding race within individualized, holistic review is actually antithetical to the values that Justice O’Connor espoused:
[I]ndividualized consideration is ultimately more likely to thwart the long-term objectives of reducing the salience of race in our society and eliminating race-based stereotyping… [because] … [i]ndividualized consideration demands that officials prioritize among members of a racial group according to race-related criteria, whereas mechanical decision making simply demands recognition of the existence of broad categories and the membership of certain individuals in those categories, based on individual self-identification… individualized consideration give[s] state officials power to define the content of a racial category, and it is that process of definition, not the taking of race into account in and of itself, that undermines the integrity of the individual.
Professor Rodriguez also contended that while flexible, holistic, individualized review may be less stigmatizing to applicants than an explicit point system, it is doubtful that this difference has any significant effect on public perception of race-conscious policies. And if holistic admissions policies are more likely to prompt litigation, which leads to negative public sentiment, then they may actually be more stigmatizing in the long run.
Other legal scholars have also criticized the Court’s preference for more secretive race-conscious admissions policies. Professor Cass Sunstein called Grutter a “puzzling and probably indefensible conclusion,” contending that “[i]t is hardly clear that the Constitution should be taken to require a procedure that sacrifices transparency, predictability, and equal treatment.” Professor David Crump argued that the Gratz plan could be viewed as “constitutionally superior” because the Grutter plan gave universities “unlimited discretion” and obscured the use of race. In contrast, the holistic review required by Grutter resisted any straightforward analysis of weight that could be accorded to race, whether it be at the group level (set-aside seats) or the individual level (number of points).
This lack of attention to the weight given to race has also led scholars to critique Grutter. Professor Ian Ayres and Sidney Foster criticized Grutter for its “fail[ure] to offer a theory for where the line should be drawn between programs that weight race too heavily and those that do not.” Although they noted the difficulty of assessing weight given to race in a holistic review process, Professors Ayers and Foster contended that the Grutter holistic admissions system gave more weight to race than the Gratz point system. Grutter‘s language did suggest limitations on the weight that could be given to race: it could not be a “predominant factor” in admissions, nor could it “unduly burden” any groups. But Grutter did not give guidance on how to determine when race is a predominant factor or when it unduly burdens any group.
The dissenting Justices in Grutter viewed holistic admissions and individualized review as a cover for unconstitutional “race preferences,” no different from the set-asides proscribed in Bakke. Chief Justice William Rehnquist called the University of Michigan Law School’s admissions policy “a naked effort to achieve racial balancing.” Similarly, the late Justice Scalia’s dissent referred to it as “a sham to cover a scheme of racially proportionate admissions.” And Justice Anthony Kennedy, whose dissent approved of using race “as one modest factor among many others,” found that “the Law School … mask[s] its attempt to make race an automatic factor in most instances and to achieve numerical goals indistinguishable from quotas.” The Grutter dissenters thus saw holistic review as a cover for the same activity that the majority (and Bakke) deemed unconstitutional.
Even the late Justice Ruth Bader Ginsburg and Justice David Souter, who voted in favor of the Grutter holistic admissions policy, nevertheless seemed to critique it and to extoll some of the virtues of the Gratz point system. In her Gratz dissent, Justice Ginsburg wrote that “[i]f honesty is the best policy, surely … [an] accurately described, fully disclosed College affirmative action program is preferable to achieving similar numbers through winks, nods, and disguises.” Similarly, Justice Souter wrote that “[e]qual protection cannot become an exercise in which the winners are the ones who hide the ball.”
The Court’s preference for Grutter‘s holistic review over the Bakke set-aside plan and the Gratz point system made race-conscious admissions policies more nuanced and flexible, but also made it harder to evaluate their constitutionality. If either of those other plans had been upheld, then universities and prospective litigants would know more precisely how race had been used and how much it was weighted in admissions. They could use those guideposts to assess the constitutionality of admissions policies before litigation. For example, had the Justices upheld the set-aside plan at issue in Bakke, universities and courts would have notice that setting aside 16% or so of seats for underrepresented students was constitutional. Similarly, if the Court had affirmed the point system in Gratz, then 20 points on a 150-point scale (13.3% or so) would have modeled an acceptable weight on race in the admissions process. But there were no such guideposts in Grutter to tell whether race-conscious admissions policies are unduly burdening any group, or whether race has become a predominant factor in admissions. And this lack of clarity could only lead to more controversy and litigation.
III. LITIGATING SECRET ADMISSIONS I: HOW GRUTTER LED TO SFFA
Twenty years ago, when Grutter was first decided, two legal giants from opposite ends of the ideological spectrum foresaw the barrage of lawsuits to come. The late Justice Antonin Scalia stated so in his Grutter dissent. Justice Scalia lamented that the Grutter decision “seems perversely designed to prolong the controversy and the litigation.” Although Scalia would have struck down affirmative action altogether, he intimated “even a clear anticonstitutional holding that racial preferences in state educational institutions are OK” would have been better than the Grutter majority’s insistence on revisiting the issue. In ironic agreement with Justice Scalia was the late Professor Derrick Bell—founder of Critical Race Theory. Professor Bell criticized Grutter for its reliance on diversity rather than racial justice as the basis to uphold affirmative action. Professor Bell thought of the diversity rationale as a “distraction” and referred to Grutter as a “litigation-prompting” decision that would make it hard to distinguish victory from defeat.
Professor Bell and Justice Scalia proved to be prophetic. Beyond serving as a blueprint on how to implement race-conscious admissions policies, one can readily see Grutter as a guideline for how to bring legal challenges against such policies. Justice O’Connor’s proposition that race-conscious admissions must have an end point was an invitation for further lawsuits. Litigants could readily argue that the time had come when universities could attain sufficient diversity without using race-conscious policies. And because strict scrutiny applies to all racial classifications, universities bore the burden to show that their race-conscious admissions policies were necessary and complied with all of Grutter‘s other requirements.
In this context, the SFFA plaintiffs took full advantage of the obscurity of holistic review. This was particularly apparent in SFFA v. Harvard, the case which received the most media attention. Here, SFFA argued that that holistic review masked intentional discrimination and implicit bias against Asian Americans. Harvard’s complex and mysterious holistic review process allowed SFFA to entangle two claims: (1) Harvard discriminates against Asian Americans in favor of White applicants; and (2) Harvard’s holistic admissions policy does not meet Grutter‘s narrow tailoring criteria. In its Complaint, SFFA asserted:
Harvard has a history of using the rubric of “holistic” admissions in general, and to limit the admission of Jewish applicants and other minority groups. Indeed, Harvard is using the same pretextual excuses to justify its disparate treatment of Asian Americans that it used to deny that it was discriminating against Jewish applicants in the past.
SFFA also argued that Harvard used race as more than a “plus” factor, and it put forth complex statistical models to support this argument. It contended that “Statistical evidence reveals that Harvard uses “holistic” admissions to disguise the fact that it holds Asian Americans to a far higher standard than other students and essentially forces them to compete against each other for admission.” In these ways, holistic review—with its complexity and mysteriousness—was at the center of SFFA’s claims.
Although Harvard prevailed at the District Court, Judge Allison Burroughs was critical of Harvard’s personal rating score—part of the holistic review process that assesses various “qualities of character.” She noted that “the disparity between white and Asian American applicants’ personal ratings has not been fully and satisfactorily explained.” She further noted that “[i]t is … possible, although unsupported by any direct evidence … that… implicit biases disadvantaged Asian American applicants in the personal rating relative to white applicants,” and she suggested that Harvard’s admissions reviewers might benefit from implicit bias training.
On appeal to the First Circuit, SFFA seized on this suggestion. It argued that Harvard bore the burden to explain differences between White and Asian American applicants’ personal ratings scores. And while the First Circuit rejected this argument and affirmed the district court ruling, SFFA’s argument again highlighted the possibility that holistic review can mask discrimination and bias. SFFA was still able to ground its appeal to the U.S. Supreme Court in the obscurity of holistic review. It argued that Harvard penalizes Asian Americans, that it uses race as more than a plus factor, and that it engages in “racial balancing.” Ironically, while SFFA raised the dubious history of holistic admissions and claimed that it served to mask discrimination, the Plaintiffs did not rebuke holistic review itself. At oral argument, UNC Counsel Patrick Strawbridge actually stated that “there’s nothing wrong with holistic review,” even though the crux of SFFA’s argument was that holistic review covered up racial discrimination.
With its current supermajority of conservative Justices, the Court was bound to outlaw race-conscious admissions policies. Chief Justice Roberts’s SFFA majority opinion held that Harvard and UNC had not defined their diversity-related goals well enough to constitute a compelling interest, and had not shown how race-conscious admissions would allow it to meet those allegedly ill-defined goals. The Court also found that admissions are a zero-sum game where it is unacceptable to use race in a manner that lowers the percentage of any group—a holding that effectively overturned Grutter.
The concurrences by Justices Thomas and Gorsuch drew upon SFFA’s arguments about holistic review. Justice Thomas noted that “Harvard’s ‘holistic’ admissions policy began in the 1920s when it was developed to exclude Jews.” Drawing from SFFA’s argument, Justice Gorsuch stated:
SFFA observes that, in the 1920s, Harvard began moving away from “test scores” and toward “plac[ing] greater emphasis on character, fitness, and other subjective criteria.”… Harvard made this move, SFFA asserts, because President A. Lawrence Lowell and other university leaders had become “alarmed by the growing number of Jewish students who were testing in,” and they sought some way to cap the number of Jewish students without “stat[ing] frankly” that they were “directly excluding all [Jews] beyond a certain percentage.”… SFFA contends that Harvard’s current “holistic” approach to admissions works similarly to disguise the school’s efforts to assemble classes with a particular racial composition—and, in particular, to limit the number of Asian Americans it admits.
Justice Gorsuch also referenced the lack of clarity about how much weight is given to race in a holistic admissions process: “[T]he parties debate how much of a role race plays in admissions at Harvard and UNC… when making admissions decisions in ‘holistic’ review of each applicant.”
But it was the dissents by Justices Sotomayor and Jackson that most illustrated how significant holistic review was to the SFFA cases. The dissenting opinions went into much detail, describing the workings of holistic review at length. Justice Sotomayor explained thoroughly that race can be “considered as one factor of many in the context of holistic review” if “that use is ‘contextual and does not operate as a mechanical plus factor’.” She described Harvard’s admissions process in detail:
[I]t involves six different application components. Those components include interviews with alumni and admissions officers, as well as consideration of a whole range of information, such as grades, test scores, recommendation letters, and personal essays, by several committees. Consistent with that “individualized, holistic review process,” admissions officers may, but need not, consider a student’s self-reported racial identity when assigning overall ratings. To choose among those highly qualified candidates, Harvard considers “plus factors,” which can help “tip an applicant into Harvard’s admitted class.” To diversify its class, Harvard awards “tips” for a variety of reasons, including geographic factors, socioeconomic status, ethnicity, and race. Consistent with the Court’s precedents, Harvard properly “considers race as part of a holistic review process,” “values all types of diversity,” “does not consider race exclusively,” and “does not award a fixed amount of points to applicants because of their race.”
Justice Jackson also delved into the fray, describing the complexities of UNC’s admissions process:
UNC has developed a holistic review process to evaluate applicants for admission. Students must submit standardized test scores and other conventional information. But applicants are not required to submit demographic information like gender and race. UNC considers whatever information each applicant submits using a nonexhaustive list of 40 criteria grouped into eight categories: “academic performance, academic program, standardized testing, extracurricular activity, special talent, essay criteria, background, and personal criteria.” Drawing on those 40 criteria, a UNC staff member would consider, with respect to each, his “engagement outside the classroom; persistence of commitment; demonstrated capacity for leadership; contributions to family, school, and community; work history; [and his] unique or unusual interests.” Relevant, too, would be his “relative advantage or disadvantage, as indicated by family income level, education history of family members, impact of parents/guardians in the home, or formal education environment; experience of growing up in rural or center-city locations; [and his] status as child or step-child of Carolina alumni.” The list goes on. The process is holistic, through and through.
After describing this complex process, Justice Jackson herself poses the operant question: “So where does race come in?” She spends several pages explaining this.
Why these long explanations? Justice Jackson notes how the Plaintiffs’ case was built on mischaracterizing holistic review: “what SFFA caricatures [UNC’s admissions process] as an unfair race-based preference cashes out, in a holistic system.” It seems that Justices Sotomayor and Jackson became in tune with the overall litigation strategy here and recognized that holistic review was the cover for all SFFA’s and the majority’s assertions of discrimination. Secret admissions allowed SFFA to make its main contentions even more readily, and Justices Sotomayor and Jackson sought to demystify holistic review and the use of race within it.
Oddly enough, Chief Justice Roberts’s majority opinion did give one nod to the use of race within a holistic admissions process. While universities cannot consider race itself, they can consider the impact of race on individual applicants through the same components of holistic review admissions committees already use. The majority states 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.” Some college counseling firms saw this as a “loophole,” contending that while the “race box” cannot be considered, the “story” about race will matter a lot. Colleges and universities have designed their essay prompts around the majority’s statement. Sarah Lawrence College actually quoted Chief Justice Roberts’s opinion in one of its essay prompts and asked applicants to “[d]raw upon examples from your life, a quality of your character, and/or a unique ability you possess, [to] describe how you believe your goals for a college education might be impacted, influenced, or affected by the Court’s [SFFA] decision.”
However, Chief Justice Roberts insisted this “loophole” does not allow consideration of race itself. Rather, it allows consideration of individual characteristics—not unlike those assessed by Harvard’s personal rating score—that are merely manifested through racial experiences. The majority gives examples:
A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race.
The Chief Justice asserted that “universities may not simply establish through application essays or other means the regime we hold unlawful today.” He noted that “what cannot be done directly cannot be done indirectly” in the “shadows.” Justice Sotomayor also seemed quite skeptical about the consideration of racial experiences through essays, calling it a “false promise” and “nothing but an attempt to put lipstick on a pig.”
But the distinction between the admissions regime that the SFFA majority endorses and the one it outlaws is far from clear. It may be even more vague than all the features of Grutter noted earlier. The only aspect missing now is the one that made race a little easier to see—the box where applicants can designate their race. Without that box, race becomes even more obscure on applications. If universities continue to use holistic review, what is to stop them from using not just essays that discuss race, but also race itself discerned from those essays?
IV. LITIGATING SECRET ADMISSIONS II?: “WINKS, NODS, AND DISGUISES”
Although Chief Justice Roberts warned universities about using race surreptitiously, what happens in the “shadows” is bound to be an issue. In the context of holistic review, the SFFA majority’s nod to discussion of race in essays brings to mind Justice Ginsburg’s dissents in Gratz and Fisher v. University of Texas at Austin (Fisher I). In Fisher I, Justice Ginsburg opined that “[a]s for holistic review, if universities cannot explicitly include race as a factor, many may ‘resort to camouflage’ to ‘maintain their minority enrollment’.” Specifically, she noted that universities might use names to assess ethnicity, “encourage applicants to write of their cultural traditions in [their] essays [to] highlight the minority group associations to which they belong,” and use other indirect means. In fact, all of these are components of holistic review that can reveal an applicant’s race. And as Justice Ginsburg suggested in her Gratz dissent, admissions committees who are particularly motivated to maintain racial diversity could resort to the “winks, nods, and disguises” to do so.
There have been accusations of such “winks, nods, and disguises” in the past. In 1996, the state of California enacted a popular referendum, amending its constitution to ban race-conscious policies, including the use of race in admissions. Since the ban went into effect in 1998—two decades before the SFFA cases—California’s public universities have not been allowed to use race as a factor in admissions.
Nevertheless, in 2008, two faculty members at the University of California at Los Angeles (UCLA), Professor Tim Groseclose and Professor Richard Sander, accused UCLA of surreptitiously using race in its undergraduate holistic admissions process and thus defying California’s constitutional ban. Specifically, Professors Groseclose and Sander accused admissions committee members of using personal statements and other information on applications to determine the race of applicants, and then employing this knowledge to benefit African American applicants. Some years later, each of them wrote books discussing these allegations.
Professor Sander went into the history of admissions policies in the University of California (UC) system. Prior to 2001, the main path for California high school students to gain acceptance to the UC system was to attain “a combination of high school grades and standardized test scores that put them in the top eighth, academically, of California high school seniors.” A significant percentage of applicants were admitted based on academic criteria alone. There were “special admission” programs designed to boost enrollment of underrepresented groups, but these were much less effective after California’s constitutional ban on race-conscious policies went into effect in 1998. In 2001, the UC Regents adopted the “Eligibility in the Local Context [EIC]” plan, which “specified that students whose UC-adjusted grades put them in the top 4% of their high school classes would be UC-eligible.” EIC was expected to boost admission of Black and Latina/o students from highly segregated schools where achievement was generally lower. It did increase the numbers significantly at many of the UC undergraduate campuses, but there was only a modest effect at the two flagship campuses—UC Berkeley and UCLA.
Foreshadowing Chief Justice Roberts in SFFA, the University of California (UC) system began using admissions essays more widely, along with consideration of other nonacademic criteria. Here, applicants could discuss life experiences and hardships and the ways they could contribute to diversity. Through some of these application components, applicants could readily reveal their racial backgrounds. In 2002, Professor Sander noted that UC Berkeley adopted a holistic admissions policy, which considered all applicant characteristics, including “personal quality” indices that measured factors such as “socioeconomic status, hardships overcome, writing ability, and extracurricular activities.” Proponents of the holistic policy thought it would boost enrollment of underrepresented applicants who were strong on nonacademic criteria. Opponents thought it could become a cover for illegal use of race, ascertained through personal essays or other information on applications. However, the policy had little effect on enrollment of Black and Latina/o students at UC Berkeley.
UCLA also adopted a holistic admissions policy for the entering class of fall 2007. In contrast to UC Berkeley, there was a dramatic increase in Black student enrollment at UCLA. From 1995 to 1997, UCLA enrolled over two hundred new Black students each year. In 1998, the first year that California’s constitutional ban on affirmative action went into effect, this number dipped to less than 150. New Black student enrollment at UCLA fluctuated over the next decade, but it never went significantly over 150, and in 2006, it was at a low of about 100. But for both 2007 and 2008, new Black student enrollment doubled to over 200.
This increase prompted Professors Groseclose and Sander to raise the possibility that admissions officers were covertly using race itself as a criterion. Professor Sander contended that “[h]olistic admissions by itself did not add anything to African-American admissions at UCLA; rather, it provided a cover for illegal discrimination by UCLA’s admissions office.” Professor Sander claimed that the secretive nature of holistic review served to obscure the use of race in the admissions process.
Consequently, UCLA commissioned the late Professor Robert Mare of the sociology department to conduct an independent review of the University’s undergraduate holistic admissions process. Professor Mare used data from the fall 2007 and fall 2008 admissions cycles. His report also laid out the pathways to admission, factors considered in holistic review, and ratings scales for UCLA’s undergraduate holistic admissions process. His investigation gives one model for assessing post-SFFA accusations that universities are still using race itself as an admissions factor, rather than personal qualities tied to racial experiences.
In its various phases and components, the admissions process reviewed by Professor Mare considered a plethora of factors to determine which applicants would be admitted, including grades, difficulty of classes taken, standardized test scores, extracurricular activities, school and community involvement, contribution to family income (if working), academic enrichment activities (which could also be work) socioeconomic status, and other challenges and “limits to academic achievement.” Based on holistic assessment of these criteria, applicants were rated by admissions reviewers on a quantitative scale: “1 (emphatically recommend for admission …), 2 (strongly recommend for admission …), 2.5 (recommend for admission), 3 (acceptable for admission…), 4 (qualified …), 5 (recommend deny …).”
UCLA had a number of pathways to admission, most of which employed holistic review to varying degrees. “Regular Review” admittees came from general holistic ratings on a numerical scale, scored by one or two application reviewers. “Athletic Admission” involved a separate admissions committee, and while athletes might submit regular applications, they were reviewed differently. “Final Review” generally involved applicants who had received discrepant scores during Regular Review and were referred for further consideration. “Supplemental Review” was for applicants referred by readers during Regular Review because those readers “believe that they cannot score the applicant on the basis of the information contained in the application or if they believe that the applicant deserves special consideration because of personal circumstances reflected in the application.” More information, such as letters of recommendation and updates about academic performance and personal circumstances, was solicited from applicants submitted for Supplemental Review. “School Review” was for a “small number of applicants … based on special circumstances that surround their high schools”: for example, if an applicant had strong academic credentials but did not stand out because they went to a school that had many academically strong students.
Professor Mare’s review found that:
- Relative to the applicant pool, White, East Asian American, and South Asian American applicants were more represented among admitted students than Black, Latina/o, and Southeast Asian applicants, due principally to disparities during Regular Review;
- Black and Latina/o applicants were disproportionately represented in Supplemental Review;
- For “holistic read scores” during Supplemental Review and Final Review, Black applicants were rated “somewhat more favorably” and East and South Asian American applicants were rated “somewhat less favorably” than other applicants who were “otherwise similar in academic qualifications, personal characteristics, and measured challenges and hardships;”
- When controlling for racial differences in all other applicant characteristics, “Whites, African Americans, and Latinos are overrepresented among those admitted and Asian American applicants are underrepresented.”
On this last finding, Mare further noted that for Black and Latina/o applicants,
this effect occurs primarily in Final and Supplemental Review, and that the
“disadvantages of Asian applicants occur, with varying magnitudes, throughout
the admissions process.”
Professor Mare’s overall conclusion was that “[S]ome disparities in outcomes favor some groups and disfavor others among applicants who are otherwise similar on their measured characteristics. Whether these disparities are considered small or large is a normative, policy issue—not a scientific one.” Despite the ambivalent conclusion by Professor Mare, UCLA itself stated that “Mare’s report found no evidence of bias in UCLA’s admissions process,” that the differences reported by Mare “arose almost exclusively in supplemental review, a step… that is intended to give additional attention to atypical applicants,” and that “those … differences can be explained by the nuances and context of the applicant’s experience.”
Although this matter did not go further, the type of controversy that occurred at UCLA could well happen again. Opponents of affirmative action are bound to accuse universities of using race surreptitiously. But it will be difficult to separate impermissible use of race itself from the permissible consideration of racialized experiences in applicants essays referenced by Chief Justice Roberts in the SFFA majority opinion. And as the controversy at UCLA suggests, admissions committees or individual admissions reviewers could still use race illegally—or at least be accused of doing so. Justice Ginsburg’s comment about “winks, nods, and disguises” suggested as much, and Justice Souter also warned in his Gratz dissent that equal protection could very well “become an exercise in which the winners are the ones who hide the ball.” Some might even view this action as a morally justified act of “civil disobedience.”
If such accusations are widespread and taken seriously, they may well prompt investigation and litigation. And controversies about the impermissible use of race in a post-SFFA regime would be even messier than under the Grutter regime. Universities would not admit to direct and explicit use of race as they did in Bakke, Gratz, Grutter, Fisher, and the SFFA cases because now, doing so would be to admit they are violating the law. Plaintiffs would thus face another well-known obstacle if they filed a post-SFFA case accusing universities of using race directly in admissions: the intent doctrine. Facially race-neutral policies that merely have a disparate impact on different racial groups do not violate the Fourteenth Amendment. The Equal Protection Clause only applies to the intentional use of race by government actors.
In past cases challenging affirmative action in admissions, universities admitted to using race-conscious policies, so strict scrutiny automatically attached. This placed a high burden on universities: they had to show that their policies were narrowly tailored to a compelling state interest. But now, universities will contend they are only using facially race-neutral admissions policies. In post-SFFA litigation, plaintiffs would bear the burden to prove that universities are being disingenuous and intentionally using race.
How would they do so? Unless there was direct, smoking gun evidence that a university used race impermissibly for admissions decisions, plaintiffs would have to rely on statistical evidence. In the cases before SFFA, such evidence served not to demonstrate that universities were using race (they admitted doing so legally), but rather to approximate and highlight the weight given to race in the admissions process. For example, in both Bakke and Grutter, the Plaintiffs submitted data showing disparities in grades and test scores between admitted underrepresented and nonunderrepresented students. The Grutter Plaintiffs used this evidence to support their claim that the University of Michigan Law School was using a de facto quota system in violation of Bakke—an argument rejected by the Grutter majority. And SFFA employed complex statistical models of holistic review processes, incorporating not only academic criteria, but a variety of factors that go into a holistic admissions process. Through such models, SFFA contended that Harvard and UNC used race as more than just a plus factor for underrepresented applicants.
But in the post-SFFA world, universities would deny using facially race-conscious policies. Plaintiffs would have to use statistical evidence to establish intentional use of race itself—in the mix of admissions committees’ consideration of essays about racialized experiences and other factors incorporated in holistic review, including socioeconomic status, personal hardship, geographic criteria, and other factors. And the Supreme Court has set a high bar for statistical evidence itself to prove intent. When alleging intentional use of race, plaintiffs would have to show that academic and other differences between admitted applicants of different racial groups are “unexplainable on grounds other than race.” Their ability to do so would depend on the magnitude of these differences, in relation to the total of applicants to the academic program and the other admissions criteria that were considered. Courts would have to evaluate statistical differences between racial groups and determine if they form “a ‘stark’ pattern” that is “unexplainable on grounds other than race.”
Rather than inviting more lawsuits however, universities are likely to be risk averse. What has already been happening, and what I suspect may continue in various forms, is the “de-quantification” of admissions. Universities could reduce the use of numerical scales and criteria and rely more on unquantified judgments of admissions committees as part of holistic review. This would reduce the amount of statistical data that potential plaintiffs could use to claim that universities are intentionally using race.
The reduced use of standardized college entrance exams is one example of such de-quantification. For well over a decade now, universities have been making such exams optional for admission, or eliminating their consideration altogether. This has occurred for various reasons, including removal of what some perceive as a barrier to the admission of underrepresented groups, desire to emphasize other holistic attributes in the admissions process, and the difficulty of test administration during the COVID-19 pandemic. For the fall 2023 cycle, over 80% of four-year undergraduate institutions had either made submission of standardized test scores optional or eliminated their usage altogether. In the past, such test scores have also been used by antiaffirmative action plaintiffs to establish the magnitude of race-conscious policies and their burden on some racial groups. And now in a post-SFFA world, universities seeking to avoid lawsuits alleging the use of race now have even more incentive to eliminate use of standardized entrance exams.
If the use of standardized tests declines, universities may rely more on another quantified measure—high school grades—to make admissions decisions. However, because they are not standardized across schools, it is harder to use grades to compare applicants. And high school grade inflation has compounded that problem. The 2019 National Assessment of Educational Progress High School Transcript Study (NAEP-HSTS) reported that, adjusting GPAs to a 4.0 scale, the average overall high school GPA across the nation rose from 2.68 in 1990 to 3.11 in 2019. Moreover, the average high school GPA for academic courses rose from 2.54 to 2.98, and grades for every type of high school course showed a statistically significant increase in the last thirty years. And this trend has tended to benefit “students from wealthier (and whiter) high schools than average”—thus exacerbating inequities between more privileged and less privileged students. There is also evidence that the correlation between grades and standardized test scores has decreased over time—particularly after the COVID-19 pandemic.
With the reduced value of grades to compare applicants and the potential phase-out of standardized entrance exams, universities may rely even more on holistic review of nonacademic criteria.
But nonacademic factors in holistic review are also quantified at some universities. Such factors have been used in investigation and litigation. Harvard’s personal rating score is one example that featured prominently in the SFFA litigation, with the Plaintiffs arguing that it demonstrated discrimination against Asian Americans. Professor Groseclose’s allegations that UCLA was using race to make admissions decisions employed socioeconomic data such as family income. And Professor Mare’s analysis of UCLA’s admissions policy was based on “holistic read scores.”
Unlike standardized tests and GPAs though, quantification is not an integral feature of holistic review itself. I have served on admissions committees at two law schools that used holistic review as part of a selective admissions process. At both of these law schools, many applicants were admitted automatically via academic criteria (undergraduate GPA and standardized test scores). However, the admissions director referred for committee review those applicants with academic criteria “on the bubble” or those having potential character and fitness issues or other special circumstances. The admissions committees at these law schools had access to applicants’ academic records, personal essays, letters of recommendation, and other components of holistic review. But at neither law school did we assign quantitative scores to any of these components, or to the applicants we reviewed. We simply discussed their applications individually at committee meetings and then voted on whether to accept, deny, or wait-list each applicant.
Elite universities are in a different position: they receive far more competitive applications than they can accept for a given class. Those institutions employ holistic review for practically all of their applicants, and they often have quantitative ranking systems for various components of applications. But it may not be necessary to use such quantitative rankings. After Gratz and Grutter, “institutions had to expend more resources on holistic admissions and eliminate more cost-effective point systems.” While it may be more administratively cumbersome, universities could adjust their holistic assessments of applicants to be less quantitative or to produce less data that could be used in litigation. If they do so, the result would be even more secret admissions.
V. CONCLUSION: SECRET ADMISSIONS FOR THE APPLICANT
In this article, I have examined the secrecy of holistic review in admissions, along with many of its consequences. While holistic review has many benefits, its obscure nature contributes to lack of public understanding regarding admissions, invites litigation to challenge admissions policies, and facilitates the potential for subterfuge through surreptitious use of race. As universities continue to use holistic review in the post-SFFA era, they should also strive to be as transparent as possible about their admissions processes. Although Justice O’Connor and others believed that opaqueness would help avoid controversy around race-conscious admissions, the opposite has proven to be true.
Transparency is also better for equity among applicants. Opaqueness undermines the very purpose of holistic review—it thwarts diversity by giving more advantages to the most privileged applicants who can hire college counseling services to guide them. In their review of holistic admissions, Bastedo and colleagues lament that exacerbated information asymmetries in admissions knowledge between wealthy and poor students, undermatching of low-income students, and forms of gaming and manipulation are all facilitated by the ambiguity and seeming arbitrariness in college admissions decisions.
My own experience talking with students illustrates how less privileged students don’t have access to information about holistic review. I conclude this Article by recounting a personal anecdote that illustrates two of the pitfalls of holistic review for applicants—particularly those who are less privileged. This anecdote involves a former student of mine, who I will call Raaz.
Raaz became comfortable talking to me after taking one of my classes. In our conversations, she shared with me the adversity she encountered during her journey to law school. She is a woman of color who grew up in poverty: her family was on welfare, and she was eligible for free lunch throughout her childhood. She and her siblings were raised by a single mother, and as the oldest child, she took on a lot of family responsibilities. During high school, she worked nights at a fast-food restaurant to help pay her family’s bills. She married in her late teens and had a full-time job right out of high school. After taking classes part-time and online, she graduated from college in her late twenties, while still holding a full-time job and raising her family. Her job sometimes involved working with lawyers, and she admired what they did and the respect they garnered, which eventually motivated her to apply to law school.
In her late thirties, Raaz, now divorced after an abusive relationship, finally determined it was time. But she still worked long hours, and although her children were almost adults, she was quite involved in their lives. She took the LSAT cold, without any practice exams: she didn’t even know what sections were on it. All she knew was that she wanted to be a lawyer and needed to take this test to go to law school. She gave no other thought to the LSAT: it was just another thing she had to do—another hurdle to jump over. She saved money to pay the testing fee, signed up for the test, and showed up on Saturday morning to take it.
In the midst of applying to law school, Raaz had no idea about holistic admissions. She did not consult anyone about her application, merely filling it out one evening. She thought her personal statement should just tell why she was interested in becoming a lawyer, in very basic terms, so that law school admissions committees would take her seriously. Nowhere on her application did she indicate any of the hardships she went through and the challenges she overcame. It did not occur to her that law schools would consider any of these things. She certainly did not know that there is an entire profession of admissions counselors devoted to helping privileged students in elite circles polish their admissions essays, choose and lay out their extracurricular activities, and take other measures to make their applications look impressive to admissions committees. Nevertheless, she was accepted to law school and was very successful, both as a student and in her subsequent legal career.
But perhaps even more telling is the second pitfall I saw when talking with Raaz. When I explained to Raaz that highlighting her personal story and resilience could help her in the future, she wanted no part of it. She did not want to share her personal challenges and struggles in an application or interview. She told me that what I called “resilience” was what she thought of as “the grace of God,” not an academic or professional credential. Growing up, Raaz was taught that resilience meant not making excuses—that talking about her struggles was a sign of weakness, or at least that it could be seen as such. In her mind, it was her achievements that should matter, not the life obstacles she had to overcome to attain them.
Additionally, overcoming challenges and showing resilience had often been very traumatic for Raaz. She and I had become close enough that she was willing to share her experiences with me, but not with people she did not know or trust. The thought of doing so seemed embarrassing to her. Later, when Raaz asked me to write a letter of recommendation for her, we revisited the conversation. I offered to include some of the challenges she overcame in my letter and to discuss her resilience. But Raaz was very clear that she did not want me to share any of this information. Even when I reiterated that it could augment her application, Raaz was adamant that I just write about her academic performance and my interactions with her. She had indeed done well in my classes, and I respected her wishes when I wrote the letter. It is understandable that she did not want her struggles to be on display for others to evaluate, even if that would have helped her application.
All of this has implications for the so-called essay loophole in Chief Justice Roberts’s SFFA majority opinion. Christopher Rim, CEO of the college consulting firm Command Education, put it well: “If colleges place greater emphasis on the essay in a post-affirmative action admissions landscape, students will face all the more pressure to share their racial trauma, describing and justifying their lived experience for the (predominantly white) eyes of admissions officers.” The irony here is that applicants who might benefit most from writing essays about their experiences with discrimination, overcoming challenges, and resilience may not want to write about such experiences and may actually want to hide these experiences, much less bring attention to them in an essay.
Indeed, universities may be able to mitigate many of the pitfalls I have mentioned. They can take measures to avoid litigation, to inform the public more about holistic review, and to make admissions counseling more available to applicants from less privileged backgrounds. For all of these pitfalls, transparency can be part of the cure. But when considering the adversity faced by applicants, transparency becomes the dilemma. Universities need to be sensitive to the fact that holistic review, for all of its benefits, may compel some applicants to make admissions about their backgrounds that they would rather keep secret.
