Consequences of the SCOTUS Affirmative Action Ruling and the New ABA Memorandum

In the aftermath of the affirmative action ruling by the Supreme Court on June 29th, 2023, businesses, universities, and other institutions alike have grappled with how to handle hiring and admissions processes while maintaining diversity. The ruling was aimed at Harvard University’s and the University of North Carolina’s admissions standards, with broader implications on affirmative action as a policy elsewhere. In response, the ABA issued a memorandum on July 29th, 2024 that outlined possible revisions to the affirmative action policies that were in place. The new revisions would establish a commitment to equity and diversity despite the ruling. This post will delve into the affirmative action SCOTUS ruling, as well as outline the ABA’s proposed policy moving forward.

 

A group called Students for Fair Admissions (“SFFA”), led by conservative activist Edward Blum, filed a complaint against Harvard University, claiming that the affirmative action policies unfairly discriminated against Asian-American students attempting to get into the school. They also included the University of North Carolina in the complaint, saying that they discriminated against Asian-American and White students. The Supreme Court stated that under the U.S. Constitution, affirmative action policies violate the promise of equal protection under the law and give an unfair advantage to minority groups. Chief Justice John Roberts stated that universities are still allowed to consider race when prompted with an essay about how race affected one’s background, but that it can not be part of the distinct decision-making process.

Affirmative action has been a point of contention ever since it was mentioned in the Civil Rights Act of 1964 and has been challenged multiple times in collegiate settings. Most recently, a 2016 ruling (also led by Edward Blum) sided with affirmative action policy when a white student sued the University of Texas after failing to be admitted to the university.

 

In the United States, Harvard estimates that about 40% of colleges in the U.S. take race into account when deciding on admission. Both Harvard and UNC have said that race is only a piece of the puzzle and does not solely determine how one student is admitted over another. Other universities and institutions see affirmative action as a useful tool in widening perspectives and ensuring a diverse workforce, as well as advancing equity and inclusion.

The National Asian Pacific American Bar Association (“NAPABA”) released a statement expressing disappointment in the ruling, writing how it disrupts the pursuit of equity, diversity, and inclusion in leadership areas. They claim this decision delays efforts to increase diversity in the early stages of legal programs. The Lawyers’ Committee for Civil Rights Under Law also published a similar statement, one that outlines how the decision will negatively impact the accessibility of higher education for minority groups. They believe that people of color have historically been distanced from educational opportunities often granted to other white students, and that affirmative action is the key to a remedial solution. Law schools themselves are also reacting to the ruling, with the Law School Admission Council stating that the legal profession requires a dedication to access, equity, and fairness. The president of the council, Kellye Testy, also believes that as schools follow the ruling, the pre-law pipeline will allow less diversity in the profession and decrease diversity among lawyers in general. Boston University law dean Angela Onwuachi-Willig also states that it will cause a “cycle of inequality in all aspects of the justice system.”

 

The ABA memorandum, published on July 29th, 2024, outlines possible revisions to the current standards for law schools to admit applicants. Standard 206a, which was changed from “Diversity and Inclusion” to “Access to Legal Education and the Profession,” highlights the most notable changes due to the affirmative action ruling. Instead of directly aiming to admit a more diverse student body, the two new options offer to admit “all persons,” which includes minority groups and people who have historically been barred or hindered from the legal profession.

Standard 206b also addresses a similar issue but looks at the community and environment aspect of diversity. Instead of using “diversity and inclusion,” the new options again place importance on creating a learning environment for all students, including those that have been disadvantaged or otherwise hindered from the legal profession.

 

The law class admitted in 2023, the last year before the ban on affirmative action, was the most diverse class on record following a three-year upward trend. Although many universities are committed to continuing the effort to increase diversity, the affirmative action ruling will likely hinder those efforts. The President of ABA Deborah Enix-Ross wrote that “it is imperative that colleges, universities and state legislatures find alternative ways to create a diverse and talented student body.” Harvard, in response, published a statement highlighting its new additions to its law school application essay requirements and prompts. Harvard now requires a Statement of Purpose (highlighting motivation and ambitions) and a Statement of Perspective (highlighting experiences and background), each of which attempt to address each student’s individual backgrounds and motivations to more effectively admit students. The University of Michigan Law School also applied a similar tactic to their own admissions process: nine essay options were established to allow students to explain their life experience(s) and how they would shape the legal profession.

 

The affirmative action ruling has had wide-ranging implications on university admissions and the future of diversity in the legal profession. It highlights the efforts of universities trying to increase diversity while also changing the way they look at admissions and post-graduate employment. The ABA’s memorandum serves as an example of the dedication it has to considering the background of all students, while offering a way to comply with the ban on affirmative action. As the changes to the admissions processes take place and more colleges adapt to the ruling, it will be important to monitor how it affects admissions standards and diversity long-term.