The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Did Yale, Princeton, and Duke Violate SFFA in Last Year's Admissions Cycle?
Following the Supreme Court's decision in SFFA in 2023, barring the use of racial preferences in admissions, admissions patterns at most elite universities followed the pattern one would expect: enrollment of black and Hispanic students declined, and enrollment of Asian-American students increased. Three major exceptions to this pattern are Yale, Princeton, and Duke. At each of these universities, enrollment of black students was basically flat, and enrollment of Asian-American students was actually down. Enrollment of Hispanic students, meanwhile, was flat at Princeton and Duke and actually up at Yale.
In today's New York Times, University of Chicago lawprof Sonja Starr argues that we shouldn't assume that these schools were cheating, and offers 3 alternative explanations:
The first possible reason is that schools do not admit students in a vacuum. They compete for them. Why did fewer Asian American students enroll this year at Yale, Duke and Princeton? Perhaps they went to other elite schools instead … The second plausible explanation for the schools' demographics has to do with the statistics themselves: Duke and Princeton had a large rise in the number of students declining to identify themselves by race. (Yale does not report this figure.) If that rise was concentrated among Asian American students, it could explain the apparent drop-off in their numbers. [DB This would not explain the Hispanic and African American figures.]… The third possible reason the critics' suspicion is unfounded is the most important: It is perfectly lawful for universities to seek to preserve racial diversity. Even if it turns out that colleges are deliberately seeking to keep Black and Hispanic students well represented, this would not in itself raise a legal problem.
Color me skeptical. First, I find it extremely suspicious that all three schools had almost exactly the same percentage of African-American matriculants this year as in the recent past, and two of the three had almost the exact same percentage of Hispanic students. Given what necessarily were substantial changes in their admissions processes, this is an awfully "interesting" coincidence. Relatedly, I find it unlikely that Starr's first explanation would have nearly the dramatic effect it would need to have to explain this year's matriculation results.
Second, each of these schools signed an amicus brief to the Supreme Court stating that there was no way no they could possibly achieve similar racial diversity as in the past without using racial preferences. If Starr is right that the universities in question found other ways to achieve diversity without using race as a factor in admissions, it suggests one of two possibilities, neither of which is flattering. First, the schools knew that they could achieve diversity without using racial preferences but declined to do so, even though pre-SFFA Supreme Court precedent required them to use race only as a last resort, and even though this meant that they were lying in their amicus brief. Second, the schools were able to achieve racial diversity without using racial preferences but had never bothered to try to do so before, again despite precedent requiring them to.
Most likely though, all three schools illegally considered race in filling a soft quota for underrepresented minority students while also avoiding accepting more Asian-American students.
