From Race-Conscious to Race-Neutral: The Next Generation of Litigation Over Selective Admissions

Authors

Rachel F. Moran, Texas A&M University School of LawFollow

Document Type

Article

Publication Date

1-2025

Journal Title

Washburn Law Journal

ISSN

0043-0420

Abstract

In the wake of the United States Supreme Court’s decision in Students for Fair Admissions v. President and Fellows of Harvard College, there have been fierce debates over the meaning of colorblindness in the higher education admissions process. Setting the stage for these controversies are recent lawsuits challenging changes to admissions policies at selective public high schools. In these cases, the plaintiffs allege that although school officials relied on facially race-neutral criteria, their actions were motivated by a desire to improve the representation of Black and Latino students. According to the complaints, these revised policies are an impermissible form of reverse discrimination because they are designed to promote racial balance in the classroom.

So far, the federal courts have reached mixed conclusions in these cases. This Article is designed to help clarify key issues related to standing, disparate impact, and discriminatory intent. With respect to standing, affirmative action cases historically did not require plaintiffs to show that they would have been accepted to a college or university in the absence of race-based preferences. Instead, the explicit use of racial categories was enough to find a stigmatic injury that allowed disappointed applicants to sue over the policies and practices. If express racial categories are no longer part of the admissions process, as is true in the magnet school cases, then plaintiffs must find another basis for claiming an injury that merits standing. Some judges have simply required that plaintiffs show that students had applied or would apply to the magnet schools, However, as the First Circuit Court of Appeals observed, there should also be some evidence that absent the changes to the policy, these students would have been admitted.

As for disparate impact, some plaintiffs have contended that any decline in a racial or ethnic group’s offers of admission to a magnet school should be sufficient proof standing alone. Indeed, there has not even been an effort to show that the changes are statistically significant, much less legally significant. To achieve a greater degree of methodological sophistication, judges should insist that plaintiffs draw on the kind of advanced techniques used to show a disparate impact in employment discrimination cases. Moreover, courts should accord deference to school officials’ determinations of pedagogical validity when selecting criteria for admissions. With respect to discriminatory intent, the mere use of racial modeling when selecting admissions criteria should not be treated as synonymous with impermissible animus. Instead, plaintiffs should be required to show that race played an outsized role in the process that was not justifiable on pedagogical grounds. Again, deference should be accorded to school officials’ educational judgments about which criteria to use. With these safeguards in place, courts can ensure that colorblindness does not become a justification for wrongful exclusion of students of color and segregated magnet schools.

First Page

163

Last Page

197

Num Pages

35

Volume Number

64

Issue Number

2

Publisher

Washburn University School of Law

Recommended Citation

Rachel F. Moran, From Race-Conscious to Race-Neutral: The Next Generation of Litigation Over Selective Admissions, 64 Washburn L.J. 163 (2025).
Available at: https://scholarship.law.tamu.edu/facscholar/2316

File Type

PDF