This article appeared as "Affirmative Action" in the Summer 2024 issue of Independent School.
The U.S. Supreme Court recently upended decades of precedent and held that colleges and universities cannot consider race in the admission process. The decision, Students for Fair Admissions, alters the admission landscape for public and private colleges and universities. It may do the same for independent schools. To explore this topic further, I sat down with education attorneys Michael Blacher and Gabriella Kamran of Liebert Cassidy Whitmore (LCW).
In 1996, California’s constitution was amended to prohibit discrimination or preferential treatment based on race, sex, color, ethnicity, or national origin in public education and employment. In the years since this change, Blacher and Kamran have witnessed the impact on independent schools, serving as a bellwether of sorts as we assess the impact of the Supreme Court’s decision on the independent school community.
California’s efforts to find ways to create a diverse student body without risking a violation of the law—a challenge schools now face across the country—can provide meaningful insight into potential lawful strategies in a post-Students for Fair Admissions landscape.
- Targeted outreach: Schools may recruit underrepresented applicants and participate in events that draw significant participation from underrepresented groups as long as it’s part of a general effort to cast a wide net and participation is available to all prospective applicants.
- Data collection: Schools may collect data related to the racial composition of its student body or workforce. The data can be a valuable tool for gauging the effectiveness of diversity programs and identifying areas where greater efforts are necessary.
- Alternative measures of diversity: Schools may use other criteria to increase diversity. For example, the University of California considers applicants’ income level, neighborhood, attendance at a low-performing high school, first-generation college status, and the impact of their background on academic achievement.
- Essays: Schools may ask applicants to write about how they overcame discrimination or other challenges in their lives.
- Standardized tests: Schools may disregard or disallow standardized test scores in an effort to lower barriers and create a more even playing field.
There is much more work to do, and these are only some of the methods that California’s public schools and employers have advanced since 1996, Blacher and Kamran explain. Schools across the country—and their attorneys—are now California’s partners in pursuing creative, effective, and lawful avenues to attain a more diverse student body.