Excerpted From: Nathan L. Bennett Fleming, After Affirmative Action: Contextual Admissions and the Future of African American Law School Enrollment, 76 Oklahoma Law Review 629 (Spring, 2024) (527 Footnotes) (Full Document)

NathanFlemingOn June 17, 2023, the Supreme Court outlawed affirmative action in higher education by ruling in favor of Students for Fair Admissions (“SFFA”), finding that the admissions programs at Harvard University and the University of North Carolina (“UNC”) violate the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. Chief Justice Roberts's opinion states that Harvard's and UNC's admissions programs are unconstitutional as they did not withstand the two-step examination of strict scrutiny, which assesses whether the use of race in admissions serves compelling governmental interests and whether such use is narrowly tailored to accomplish these interests. A 6-3 majority agreed with Chief Justice Roberts's contention that the admissions programs fail strict scrutiny and violate the Fourteenth Amendment because the universities had workable race-neutral alternatives to achieve their diversity interests.

A read of the majority, concurring, and dissenting opinions in SFFA v. Harvard reflect vastly contrasting views on the role of race in contemporary American society. Similarly, differing viewpoints regarding merit are at the core of the central dispute between the Court's conservative majority and its liberal minority. In fact, the selection of Harvard as the defendant by SFFA was notable given Harvard's historic role in shaping conceptions of merit that inform and drive current admission practices. Meritocracy, touted as an impartial system that affords progress based on individual abilities and achievements, has long been considered a cornerstone of fair and just societies. It proffers a promise of equity, where power, position, and privilege are earned rather than bestowed by family lineage. Nevertheless, according to some scholars, this seemingly utopian system bears significant flaws that undermine its glossy veneer of equality. Indeed, determining how to measure merit has always been a vexing question.

For many, performance on standardized tests is the gold standard in terms of unbiased measures of merit. However, the dissenting opinions of Justices Sotomayor and Brown Jackson reflect the position of many scholars who have posited that the way merit is assessed through standardized testing is deeply flawed and perpetuates systemic disparities and societal stratification under the guise of neutrality. These scholars argue that inequality persists where rewards and societal benefits are attributed to meritocratic achievement. Such achievement simply reflects inequities in socioeconomic status and access to opportunity as opposed to aptitude or achievement. Justice Sotomayor's dissent in SFFA v. Harvard asserts that “a heavy emphasis on grades and standardized test scores disproportionately disadvantages underrepresented racial minorities. Stated simply, race is one small piece of a much larger admissions puzzle where most of the pieces disfavor underrepresented racial minorities. That is precisely why underrepresented racial minorities remain underrepresented.”

The late Professor Lani Guinier, the first tenured woman of color at Harvard Law School, defined the obsession with merit measured by standardized tests as the testocracy, “a twenty-first-century cult of standardized, quantifiable merit, [that] values perfect scores but ignores character.” In her view, testocratic merit is a conception that suggests that test scores alone best reflect the value of an applicant instead of a consideration of the contextual factors--access to opportunity, socioeconomic status, test preparation, and inequities in educational opportunity-- that impact results on standardized tests. According to Guinier, the consequence is that, rather than functioning as a tool of opportunity, standardized testing tends to solidify the existing status quo, keeping disadvantaged students in an endless loop of restricted upward mobility.

The idea that a meritocracy based on standardized test scores can adequately level the playing field is fundamentally flawed. Those who subscribe to the testocracy, like the SFFA v. Harvard Court's majority, fail to recognize both the stark disparities in resources and opportunities available to individuals from different socio-economic backgrounds and how racial marginalization continues to disproportionately relegate minorities and African Americans to diminished socio-economic positions. Hence, the cycle of privilege persists under the guise of merit, with those already at an advantage having greater access to the resources necessary to “succeed” within this system. Nonetheless, as it relates to the end of race-conscious admission practices, it is important to remember that notions of merit are not static; they have changed over time. Therefore, the most prudent response to the Court's affirmative action ban may be a redefinition of merit that moves away from testocratic merit toward what Guinier calls democratic merit. This transition would create “an incentive system that emphasizes not just the possession of individual talent... but also the ability to collaborate and the commitment to building a better society for more people.”

Following the Court's ban on the use of race-conscious admissions practices in higher education, much attention has turned toward future conceptions of merit and what a future without affirmative action in higher education will look like. Higher education institutions, policymakers, and other stakeholders are evaluating and revisiting core aspects of their admissions processes to determine how to best achieve diversity through race-neutral admissions practices. In exploring alternative admissions practices that could yield diversity without the consideration of race, key decisionmakers have focused on using parental income and eliminating legacy- and donor-admissions preferences. Though promising, simply using parental income and removing legacy/donor preferences as a substitute for race-conscious admissions practices will not yield similar levels of African American higher education participation.

This Article highlights admissions practices used in the United Kingdom and argues that such practices can be instructive in developing a race-neutral approach to achieving diversity that does not involve asking applicants about their racial backgrounds. In the U.K., higher education regulators share the goal of ensuring that students from underrepresented groups and the most disadvantaged backgrounds can access higher education, yet applicants are not asked to disclose their racial background on applications. There, higher education institutions have access to national databases that allow for consideration of individual and place-based measures of disadvantage. Admissions decisionmakers are empowered to use these measures to contextualize academic indicators.

The U.K. approach, termed contextual admissions, has successfully allowed a nuanced evaluation of not only test scores and grades but also disparities in advantage and opportunity. Applications from students of low-opportunity neighborhoods and schools are often flagged so that admissions decisionmakers can more closely consider these students' academic indicators in context of the structural disadvantages that these students have faced. At universities like Oxford and Cambridge, students whose indicators of educational attainment might not adequately reflect their potential--due to structural disparities in opportunity--may receive a “contextual” offer of admission at a lower level of educational attainment than “standard” offers.

The contextual admissions model is a stronger race-neutral admissions approach than an approach driven by parental income because racialized residential and school-based segregation is connected to lower participation in higher education. Therefore, a system that contextualizes academic indicators by considering disparities in advantage and opportunity will yield more admissions of African American students than a system geared towards parental income only. Racialized residential and school-based segregation continue to persist in the United States. Public schools currently have levels of racial and economic segregation that are higher than they were in the 1970s. The “achievement gap,” or the differences in educational attainment between African American and white students, can be partially explained by the “opportunity gap,” which is the difference in the levels of opportunities in the schools and neighborhoods that many African American students learn and live in.

Scholars have long recognized the link between housing and education, in that students who live in segregated neighborhoods are assigned to their neighborhood school. This link reinforces neighborhood segregation in the educational domain. Moreover, school funding is often tied to property tax receipts, meaning that schools housed in neighborhoods with lower socioeconomic levels have less resources to provide a quality education. Education is designed to eradicate the disparities that amount from residential segregation, but just as in the higher education context, K-12 educational practices far too often exacerbate the effects of inequity and marginalization that exist in far too many predominately African American neighborhoods.

Accordingly, if higher education institutions are not allowed to ask applicants about their race, the best substitute for these institutions is to rely on the measurable outcomes of systemic racial marginalization and stratification to inform admissions determinations. The contextual admissions approach, which relies on verifiable metrics that can measure and highlight racialized disparities in neighborhood and school-based opportunities, allows admissions decisionmakers to focus on the outcomes of systemic and structural racism rather than race itself.

Strict scrutiny is applied to admissions programs that involve the use of race, but it is not applied to programs that use facially neutral measures of disadvantage that have a racially disparate impact. Legal scholars have studied and outlined individual measures of disadvantage, such as whether a student has received free lunch, that could be used to redefine merit to advantage students “who have demonstrated determination to overcome structural challenges.” Building upon this work, this Article outlines how the area-based and school-based datasets used in the U.K.'s contextual admissions model can work in tandem with individual measures of disadvantage to serve as a race-neutral mechanism to achieve the educational benefits of diversity in a post-affirmative action admissions environment.

Contextual admissions will benefit students of all races who have navigated structural disadvantages. Nonetheless, given the inextricable link between race and the lack of social mobility in modern American society, the contextual admissions approach could empower higher education institutions to achieve the educational benefits of diversity and maintain current levels of African American student enrollment without asking applicants about their racial backgrounds. This Article is the first academic article that discusses how the contextual admissions model can mitigate the effects of an affirmative action ban in the United States. There was significant discussion of race-neutral admissions practices in the briefs, amicus briefs, oral argument, and majority and dissenting opinions in SFFA v. Harvard, yet the U.K.'s contextual admissions model went unmentioned. As a result, this Article holds significant value for various stakeholders, including university administrators, policymakers, and individuals, interested in the implications of the Court's affirmative action ban.

This Article's focus on African American law school enrollment holds special import for the legal sector, given the persistent underrepresentation of African Americans in law schools and the legal profession, even with the use of race-conscious admission practices. The underrepresentation of African American law students is likely to be exacerbated due to the Court's ban. Without race-conscious admissions policies, some scholars have suggested that more than 78% of African American applicants will be rejected from every law school to which they apply. African American students have historically faced obstacles in accessing a legal education, and these obstacles drive the continued underrepresentation of African Americans in the legal profession. In a recent admissions cycle, 49% of African Americans were rejected from every law school that they applied to. Only 39% of white applicants received denials from every law school they applied to.

Citing data from the U.S. Department of Labor, Professor Mary Wright reports that although African Americans account for 13% of the population, they account for 4.8% of lawyers. The representation of African Americans is lower in the legal profession than it is in almost any other professional occupation. Justice Sotomayor's SFFA v. Harvard dissent speaks to the need for a diverse pipeline of college graduates to achieve diversity in the legal profession. She notes that lawyers, Supreme Court law clerks, federal judges, and state judges are disproportionately white, relative to the number of white Americans in the population. The underrepresentation of African Americans in the legal profession and the challenges in accessing a legal education for African Americans, such as lower average LSAT scores, has consistently vexed law school administrators and other legal education stakeholders.

Standardized tests like the LSAT and the bar examination are instruments of the legal-education testocracy, where the intense focus on standardized test scores, instead of more holistic factors, perpetuates and exacerbates existing inequities in wealth, access, and opportunity. Because of the American Bar Association's (“ABA”) accreditation requirements, the LSAT is the dominant factor in law school admissions decisions, unlike undergraduate admissions and other graduate admissions processes, where holistic factors such as extracurricular activities, community service, and work experience play a larger role.

The emphasis on test scores in law school admissions has been compounded by the emphasis placed on test scores in the methodology of the U.S. News & World Report Law School Rankings (“U.S. News rankings”). The rankings and the testocracy work together to disproportionately disadvantage prospective African American law students. Thus, scholars and advocates have criticized and called for reform to the LSAT and bar examination for decades. Recently, consensus regarding the negative impacts of overreliance on these standardized tests has grown and reforms related to both the LSAT and bar examination are currently being considered, proposed, and implemented. Concurrently, an overwhelming majority of law schools ranked at the top of the U.S. News rankings recently announced that they will no longer cooperate with the rankings regime. These developments signal a disruption of foundational elements of the testocracy in law school admissions.

In many ways, this is a moment of both promise and peril as it relates to African American law school enrollment. Obviously, the Court's affirmative action ban will harm future African American law school applicants, but the shift away from rankings and standardized tests toward alternative assessment factors is promising. We must remember that this is not the first time that a Supreme Court decision, accreditation change, or an affirmative action ban has drastically shifted the landscape for prospective African American law students. This Article seeks to make sense of this moment by critically engaging with the history of African American law school enrollment and by offering concrete solutions to shape the post-affirmative action future.

This Article makes four primary contributions. First, by examining African Americans' struggles to access the legal profession, the Article situates the moment by connecting the present with historical themes from the past. African American law students and lawyers were instrumental in desegregating higher education for all Americans through skilled use of the federal courts. Therefore, the story of race and higher education cannot be told without telling the story of African American law students' struggles for accessible legal education. Second, the Article calls for the dismantling of testocratic merit, and it documents developments within legal education that suggest a shift away from testocratic merit. Third, the Article clarifies the new legal standard related to achieving educational diversity post-SFFA v. Harvard. Finally, the Article suggests the contextual admissions model in the U.K. as a constitutional post-SFFA v. Harvard approach to achieving racial diversity. The Article highlights that this approach advances democratic merit as opposed to testocratic merit because metrics used in contextual admissions decisions in the U.K. address how racial marginalization persists in the United States through residential and educational segregation.

This Article proceeds in four parts. Part I provides a historical background on African American law school enrollment and the jurisprudence regarding race and higher education. Part II highlights the opportunities presented for prospective African American law students that result from changes to the testocracy in legal education. Part III discusses SFFA v. Harvard in greater detail, clarifying the post-affirmative action legal standard requiring race-neutral admissions practices. Part IV explores the contextual admissions model as a potential race-neutral solution for stakeholders who would like to maintain or exceed current levels of African American student enrollment, not only at the law school level but across the higher education sector.

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The Court's decision in SFFA v. Harvard clearly signifies that African Americans' struggles for access to higher education are far from over. Race neutrality in admissions is the law of the land; “colorblindness” is the order of the day. The coming years will require creativity and initiative from those who desire to achieve the compelling benefits of diversity at their higher education institutions. Maintaining diversity requires a reexamination and redefinition of merit away from a testocratic conception and toward a conception of merit that considers the context in which academic success was achieved. The law school ecosystem seems to be making important strides in that direction. Moving forward--to maintain and grow African American enrollment in higher education and in law schools--contextual admissions, which use geodemographic data in tandem with information about a student's school and individual levels of disadvantage, is a race-neutral admissions approach that deserves serious consideration.

Racial Justice Fellow, DePaul College of Law. Doctoral candidate (Higher Education), University of Pennsylvania; J.D., University of California, Berkeley; M.P.P., Harvard University; B.A., Morehouse College.