Abstract

Excerpted From: Taonga Leslie and Claire Comey, The Promise of Lived Experience: Assessing Race and Merit after SFFA, 20 Northwestern Journal of Law & Social Policy 58 (Fall, 2024) (223 Footnotes) (Full Document)

The United States (U.S.) education system has never provided equitable opportunities and outcomes for students of color. For the majority of U.S. history, federal policies that aimed to forcibly assimilate Indigenous children into dominant culture left devasting impacts on their families and communities. Until the Civil War, southern states made it a criminal offense to teach a Black person to read. And, until Brown v. Board of Education, much of the U.S. maintained de jure segregation of Black, Latine and Asian students in separate and unequally funded schools.

Although Brown represented an end to official state-sponsored discrimination in education, nearly 70 years later, students of color continue to face significant barriers to equal opportunities, including: ongoing de facto segregation, unequal school funding formulas, and disproportionate school discipline and expulsion. Partially because of these and other race-linked disparities, Black, Latine, and Indigenous individuals remain heavily underrepresented in U.S. colleges, graduate schools, and in influential professions like business, law, and medicine. This underrepresentation in leading professions, in turn, subtly (and unsubtly) reinforces inequitable economic, legal, and medical outcomes for people of color.

In the context of these pervasive disparities, affirmative action policies-- which allowed colleges to consider an applicant's race or ethnicity alongside other factors to achieve greater diversity--represented one small but effective tool to balance the scales in favor of equity. The U.S. Supreme Court's 2023 decision in Students for Fair Admissions v. Harvard (SFFA) unraveled decades of precedent permitting that approach, leaving colleges and universities in a new, uncertain legal environment.

In the wake of the SFFA opinion, universities, federal and state government officials, and members of civil society have proposed a range of tools and reforms to advance racial equity. Examples include expanding targeted recruitment for students of color, abolishing legacy preferences, reducing emphasis on standardized testing, and placing greater emphasis on how students' lived experiences, including experiences linked to race, have shaped their lives. In applying the last approach, selective institutions like Harvard University and Sarah Lawrence College have highlighted Chief Justice John Roberts' concession that “nothing in the [SFFA] 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.” But considering an applicant's discussion of race may give rise to future legal challenges.

In this article, we defend the legitimacy and constitutionality of considering applicants' lived experiences of race in admissions decisions. We demonstrate in what follows that the approach is supported by historic and contemporary court precedent. We situate the lived experience approach to college admissions within a broad and well-established legal tradition. This tradition allows government actors to consider and respond to racialized experiences in a diverse array of contexts, from setting K-12 school admission policies and shaping legislative districts to conducting criminal investigations and allocating reparations.

Although we argue that, like these other practices, the lived experience approach should not trigger strict scrutiny, we also describe how the approach is narrowly tailored to advance compelling interests that the Supreme Court has already recognized. These include assessing applicant merit, improving the quality of services to disadvantaged communities, and helping colleges to glean the educational benefits of diversity. We contend that, when properly applied, the lived experience approach complies with the SFFA majority's guidance regarding race and admissions, including its command that “[a] student must be treated based on his or her experiences as an individual--not on the basis of race,” and that race cannot be used as a stereotype or a negative.

Finally, we step back to acknowledge broader tensions between the original color-conscious and restorative intentions animating the Fourteenth Amendment and the Civil Rights Act and the increasingly color-blind approach advanced by Supreme Court justices over the last 50 years. We predict that, although the lived experience approach is entirely consistent with existing jurisprudence and the text of the SFFA opinion, in the future, more conservative majorities may further erode or dismantle a lived experience admissions practice. We suggest that for true racial equity in education to be achieved, broader social movements will need to reshape our political landscape, judicial norms, and interpretation of the Fourteenth Amendment and the Constitution more broadly.

[. . .]

In the more than 150 years since the ratification of the Reconstruction Amendments, successive generations have struggled to abolish the vestiges of slavery and racial hierarchy, achieve realized equity, and establish a truly representative multiracial democracy. As the Supreme Court continues to dismantle key tools used to advance racial equity, social movements and their allies are adapting to identify new techniques to advance justice.

In this article, we argued that lived experience may be one such effective tool in this struggle. We considered the possibilities for lived experience to improve upon affirmative action by offering more tailored, individualized considerations of applicants, by reconciling concepts of equity and merit in the admissions process, and by connecting individual applicants to institutional goals of achieving equity. We demonstrated that the lived experience approach is consistent with a long legal tradition allowing the government to consider and respond to experiences of race, that it is narrowly tailored to further sufficiently compelling state interests and therefore survive the strictest constitutional scrutiny. And we demonstrated that the lived experience approach would satisfy the requirements of Title VI and the overarching guidance of the SFFA majority.

We recognize that the success or failure of lived experience depends on social context, including judicial will to accept broad applications of the approach and institutional will to center lived experience when reviewing applicants. Because we have a conservative Supreme Court majority that prefers colorblind constitutionalism, the lived experience approach could also be vulnerable to a bad faith attack. It is also possible that, without deeper institutional changes, the purported individual beneficiaries of lived experience may be subjected to stigma or tokenization. Despite these limitations, we hope the legal framework we provided can give schools the confidence that they can and should lawfully consider how race, and other identities and their intersections, shape an applicant and make them a qualified candidate for admission.

In addition to considering lived experience, schools can and should also employ other race-neutral policies. Organizations like the NAACP Legal Defense Fund have encouraged schools to “engage in admissions processes that evaluate applicants' demonstrated capacity and strengths in light of the resources and opportunities available to them,” recommending considering applicants' relevant “racial experiences,” contributions to student body diversity, first-generation status, socioeconomic background, and consideration of “whether an applicant is from a geographic area, neighborhood, or high school that is underrepresented in the college community.” Schools could also consider percentage plans that guarantee admissions to a certain percentage of eligible high school students.

Beyond admissions policies, education justice advocates have also used the SFFA decision as another opportunity to encourage higher education institutions to continue to strive toward admitting and maintaining diverse student bodies. Advocates have called for increased investment in Historically Black Colleges and Universities, for accreditors to ensure institutions prepare students to work in a diverse society, for universities to increase messaging indicating they are welcoming of diverse applicants, and for schools to engage in pipeline programs that expand access and lower barriers to entry for low-income and first-generation students.

With these limitations in mind, the lived experience approach provides a viable path forward after the SFFA decision left admissions officials without clear guidance. It adheres to the limitations the SFFA decision imposed on admissions while acknowledging the constellation of experiences that each young person applying to college carries. Unless and until the Court rules otherwise, a holistic lived experience admissions policy can ensure our country continues its slow march toward a more equitable and just education system and society.

Taonga Leslie, Director of Policy and Program for Racial Justice at the American Constitution Society. The authors thank Christopher Wright Durocher and Lindsay Langholz for their invaluable comments and feedback.

Claire Comey, 2023-2024 American Constitution Society Law Fellow.