Private schools might need change on affirmative action, too

The Supreme Court’s decision in Students for Fair Admissions earlier this summer, holding that colleges and universities could no longer use race as a factor in admissions, left many higher-education officials questioning what to do with their affirmative action programs and wondering about the practical implications of the court’s decision.

Private secondary schools should anticipate that they could be targeted in a similar way. Some have already experienced backlash from some of their constituents to diversity and inclusion efforts, and it is not difficult to imagine that a lawsuit challenging admissions or diversity programming could be on the horizon. Even prior to the Supreme Court’s decision, there were lawsuits against schools challenging attempts to increase the racial diversity of the student body as discriminatory.

To be clear, SFFA does not immediately impact private schools unless they receive federal funds. However, the Supreme Court’s finding in SFFA, that consideration of race in the admissions process is unlawful discrimination, could be used in other contexts. Although the statutes that were used in the SFFA decisions were Title VI and the equal protection clause, which generally do not apply to private schools, there are other laws that prohibit private schools from discriminating on the basis of race that could be used to mount a court challenge.

Difficult decisions

Private school administrators are now facing some difficult decisions. Many have fully embraced the values of racial and ethnic diversity and have designed and implemented significant DEI programming. These schools have made equality and fairness essential to their missions and values, designing programs to help level the playing field in acknowledgement that students of color can face barriers to attending.

To be clear, expansion of the holding in SFFA to private schools would not require that these goals be cast aside, but rather may require that they be modified or tempered to ensure that the playing field is level rather than tipped in favor of particular races.

At the core of the Supreme Court’s holding in SFFA is the concept that no individual should receive differential treatment simply because of the color of their skin. Schools now therefore need to consider whether programs meant to support and provide access to students of color will be viewed as treating white students less favorably simply because they are white.

Schools should pay close attention to two tenets of SFFA. First, the court’s characterization of admissions as “zero sum game” – for every student admitted, another student (or students) must be denied admission. The Supreme Court has set up an “us vs. them” dichotomy that cannot be ignored. Schools, therefore, should ensure that any program that supports students of color does not have a corresponding negative impact on non-minority students.

Second, SFFA prohibits the consideration of race in and of itself in admissions, using race as a proxy for another characteristic, making assumptions about individuals’ experiences because of their race, and assuming that a student adds value to the campus simply because of the color of their skin.

But it leaves open the ability to consider how the experience of being a racial minority has impacted the student. For example, it appears that it would be permissible to consider a student’s academic success in the face of demonstrated race discrimination or unequal school facilities.

Next steps

In light of the Supreme Court’s decision and the potential liability that may follow, what can private secondary schools do?

Reaffirm commitment to diversity. Supporting diversity, equity and inclusion helps ensure that students from diverse backgrounds are not discouraged from applying. Similarly, it will be important to continue to demonstrate diversity in recruiting and marketing materials so that all students can see themselves as viable candidates.

Consider barriers to entry. Review potential roadblocks to a more diverse student population and determine whether such barriers could be eliminated. For example, schools that rely on standardized test scores may consider whether elimination of test scores as a criterion for admission would open the door for a broader pool of applicants.

Expand the applicant pool. Producing a more diverse pool of qualified applicants helps create incoming classes that are more diverse. Indeed, this has been a fundamental tenet of affirmative action programs in hiring required of federal contractors for decades.

Don’t use race as a proxy. Spend time to articulate the benefits of diversity on campus beyond a simple “numbers game.” Identify the traits and characteristics that diversity brings and design admissions criteria to bring in students with those traits and characteristics, regardless of race. Do not assume that a student had to overcome barriers because of their race, for example – ask the student to describe how they overcame adversity in their life in order to achieve educational success.

Minority applicants who describe overcoming race discrimination may have a compelling story, but nonminority applicants may also have overcome abject poverty, medical disability or other issues. Give equal consideration to all those stories.

While private schools should rightfully be wary about the impact of SFFA and cautious moving forward, avenues remain open for schools to attain their diversity goals in a legally compliant way.

Kirsten M. Eriksson is a co-chair of and Brianna D. Gaddy is an associate in Miles & Stockbridge’s labor, employment, benefits and immigration practice group. They can be reached at [email protected] and [email protected].