This is an edited conversation between Michael Treviño, JD, IECA Associate (CA), Fiat Lux Educational Consulting and Jeff Levy, CEP, IECA (CA), Big J Educational Consulting.

Jeff Levy: Michael, can you distill for us what the recent Supreme Court decision on affirmative action says?

Michael Treviño: At its core, it reverses the precedent set in the 1978 Bakke decision and upheld multiple times by the court since Grutter in 2003 and Fisher in 2016. Each of those decisions upheld the principle that race can be considered, if narrowly tailored and just one of many factors. But now that’s no longer the case. While this decision eliminates the use of an applicant’s race and ethnicity itself as a factor in college admission decisions, it does hold that colleges can still consider a student’s experiences that may be related to their race. Chief Justice Roberts states for the majority that “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” But it must be based on a student’s experiences, not on the basis of a student’s race or ethnic identification alone.

It’s important to note that while this is a big decision, the overwhelming majority of colleges admit most of the people that apply. This decision impacts only a relatively small percentage of colleges that are selective. We are talking about maybe 100 colleges that are highly selective, maybe 200 if you extend a little bit to moderately selective. But these are institutions that have a long history of helping prepare students for success, and there’s a lot of data about the impact of these institutions on student’s lives. There’s some great economic data on the impact of attending a selective institution over a student’s lifetime in terms of their earnings and their success, and the data from three different economic studies show the impact of attending a selective institution has a much greater impact on underrepresented minority students than white students, as this access is generally unavailable for underrepresented students in what is for them another orbit of social connections and all kinds of other things.

Jeff: But there is something I just don’t get about this SCOTUS decision. College admission, in spite of what some may think and what some of the justices imply in their decision, is clearly not a meritocracy. Colleges admit students who help them reach their specific institutional goals—that’s how admission works. An applicant from Wyoming, for example, may have an advantage over an applicant from New Jersey simply for geographic diversity. Or a fencer over a non-athlete, an accomplished bassoonist over an accomplished violinist, a legacy applicant over non-legacy, a full-pay applicant over one with financial need, etc. If preferences such as these can be considered as part of the admission process, why can’t colleges give a plus to an African American or a Latinx applicant over a White applicant as long as it’s one of many factors considered?

Michael: Part of what’s happened with the court—and this is where the court has been very split on this—is race and ethnicity is different than playing the bassoon versus the violin. This is where you’ve even had amicus briefs by organizations who recall discriminatory quotas by colleges against Jews and a history of discrimination on the basis of race and ethnicity. The other challenge for colleges is that Harvard and the University of North Carolina, as well as others, have had a difficult time explaining how much use of racial preferences are needed in order to attain a critical mass of underrepresented students.

Also, part of this deliberation in the Supreme Court decision was about “checking the box,” as justices in this case had different reactions to an African American or Latino applicant checking a box versus actually sharing their experiences. And that’s where the court has come out.

Jeff: There is a carve out where this decision does not apply, correct?

Michael: Military academies, yes. It’s kind of a footnote by Justice Roberts. And what he says about the military academies is that because they were not part of this litigation, they weren’t included.

Jeff: In fact, in one of the most quoted lines from Justice Jackson’s dissenting opinion, she says, “The court has come to rest on the bottom-line conclusion that racial diversity in higher education is only worth potentially preserving insofar as it might be needed to prepare Black Americans and other underrepresented minorities for success in the bunker, not the boardroom.” A dagger aimed at that carve out?

Michael: Roberts doesn’t get into much detail as to why, simply writing This opinion also does not address the issue, in light of the potentially distinct interests that military academies may present. They have a national interest in reflecting the society as a whole. To which the dissenting opinions point out that these colleges that have ROTC programs also prepare military leaders. And I thought Justice Jackson’s line in her dissent was memorable.

Jeff: Michael, you’ve had extensive experience in these matters as an assistant dean at UC Berkeley starting in 1998, and then later as director of undergraduate admissions for the entire UC system during the aftermath of Prop 209. As a quick refresher for our readers, 209 was a California ballot initiative approved by voters prohibiting state institutions from considering race, gender, or ethnicity. Given the similarities between this new Supreme Court decision and Prop 209, what was its impact on University of California admissions?

Michael: The impact was big in California. It has the largest population in the country, the fifth or sixth largest economy in the world, and is incredibly diverse. And given the demographics of the state that had such a large percentage of non-White, while it wasn’t yet the majority of high school graduates, it was a significant share. And what we immediately saw in California was that African American and Latino enrollment fell off a cliff at our most selective campuses, Berkeley and UCLA. The African American student population went from seven or eight percent of the entering class to three percent, less than half of what it was before.

Part of the challenge in California is that the UCs are very selective. It’s the most selective system of higher ed in the country. What we saw here was a cascading impact on the nine UC campuses, hitting diversity at Berkeley and UCLA hardest. To be eligible for the UC system, a student needed to be in the top eighth, or the top 12.5 percent, of their high school class. When Berkeley and UCLA were enrolling larger numbers of Black and Latino students, these students were of course UC eligible, but after 209, when their race or ethnicity could not be considered, though still UC eligible, the dynamics of admissions at the campuses changed. Before 209, UC had an admissions process that looked primarily at grades and test scores. As strong as these students were, once we were not able to consider their race or ethnicity (or gender for women in STEM fields, where they’ve been underrepresented), being in the top 12.5 percent of their high school class was not enough for admission into Berkeley, UCLA, or some of the more competitive majors at certain campuses. So after 209, these students were cascaded down to UC campuses that were less selective. We saw more Black and Latino students and even women in STEM majors at campuses such as Riverside and Santa Cruz, and now also Merced.

It also had a huge impact on the graduate and professional schools. Following 209, for example, the law school at Berkeley had only one African American in the entering class. One, when the year before, we had more than 20. And this African American was a student who had been admitted the year prior and had deferred. If he had not deferred, it would have been zero.

So it was big. The other piece to remember is that the University of California’s mission, going back to the 1868 act that established it, is to serve all California communities. When 209 passed, the mission never changed—just the means to get there. So the University of California worked incredibly hard trying to figure out what we could do and what we could change.

And there were a lot of things that had to change. The University of California has spent over half a billion dollars in outreach and recruitment to try to target disadvantaged students starting in the elementary schools to encourage them and help them prepare and apply.

Jeff: The University of California reached into elementary schools?

Michael: Yes. These educational pipeline programs are huge throughout the state of California. Early academic outreach programs help prepare students, partnering with local schools, especially targeting school districts with a high percentage of first-generation, socioeconomically disadvantaged, and English-language learners. And it’s a really tough road for a lot of these top students to even think about college if their parent or parents did not attend, or where the primary language spoken at home was not English, or where the family is struggling financially. And the university continues to try to reach these students to prepare them.

Other steps included changing our admissions process so it was more holistic, looking at many more factors, especially looking at context. Our admissions process became better. It took a lot more work, a lot more people, and a lot more resources to change it. But we had to change it to look at the context of where students were coming from and to understand their experience.

Jeff: What else changed?

Michael: The selection criteria, for example, looking at the context of the school to create detailed profiles of each high school in the state of California. We needed to see contextual information, such as how many students are on free and reduced lunch, how many A through G (college prep) courses are offered at that high school, how many Advanced Placement courses are offered at that high school, what are the resources that are available at that high school, etc. Prior to that, when you had a process that looked at GPA, well, if you’re at a high school that’s highly resourced with lots of advanced placement courses, your GPA, your UC GPA that’s weighted and capped, can be quite high compared to students in a low resource school where you may not have the same opportunities to get the bump that raises your GPA. So we changed our process to look more at context in ways that we hadn’t before.

Jeff: What about the application itself?

Michael: We changed the questions to ask about students’ experiences because while we are not allowed to consider someone’s race, ethnicity or gender, we are allowed to consider their experiences.

Jeff: Is that what the current UC Personal Insight Questions (PIQs) grew out of?

Michael: That was part of it, yes. When I was system-wide director of undergraduate admissions, we began the development of the PIQs. Though we had made a lot of changes since 209, we were still using the same two essay questions as before. Even though our application materials informed applicants that we considered context as part of our 14 factors, there were still many applicants, especially from underserved populations, that were not addressing context in their essays. We were concerned that students with more resources were providing better written essays than students with fewer resources, especially first-generation college, low-income, and English-language learners, even if their GPAs and courses and everything else they did were remarkable. But they were less likely to have people helping them with their essays. Part of the development of the UC PIQs was a two-year process looking at all the different prompts and essays that were used around the country, along with input from counselors and focus groups at our counselor conferences. Our goal was to develop specific prompts that align with our revised selection criteria that consider a student’s challenges and opportunities and what they did with them.

We created eight prompts, with applicants choosing four. We made the word limit shorter—350 words for each response. So applicants now have a direct question allowing them to focus their answers on the information we need. These are not seen as writing samples in the way that college essays are often evaluated. We included among the eight some specific questions that ask students about their experiences, such as how they have worked to overcome an educational barrier, or the most significant challenges they have faced and the steps they took to overcome them. Students don’t have to pick those two PIQs, but if there are students who have had some of those challenges, we want to know about their experiences, what happened, and what they did.

Jeff: Fascinating answer. Given this new Supreme Court decision, how might admission policies be impacted across higher education? How do you think institutions will respond?

Michael: Well, I think it’s going to be some really interesting times and much of this will depend on the institutions in terms of their mission, priorities, and choices. I think the institutions where diversity is high among their priorities, and that have the resources, are going to be the most responsive to making the changes to their admissions process to minimize the loss of diversity following this Supreme Court decision.

My optimism is based on my experience serving on the faculty of the Harvard Summer Institute of College Admissions with the deans and directors of highly selective colleges, where we regularly discussed our admission processes. I believe they are committed and will make the kinds of decisions necessary to address this challenge at every stage of the admissions process. In admissions we often refer to this as the “admissions funnel.” Beginning with outreach and recruitment, they will expand efforts to identify and target high-achieving, underrepresented students.

Colleges will have to look at their applications and the questions they ask, so that applicants discuss if and how “race affected his or her life, be it through discrimination, inspiration, or otherwise.” Colleges will have to look more deeply than they do already at an applicant’s high school and the kind of resources and opportunities available. We don’t have equality of opportunity in our schools. While the best solution would be for states to invest the resources to provide equal opportunity, until then, colleges will need to put more effort into identifying and selecting high-achieving students who may have had fewer opportunities. I also expect the large percentage of test-optional colleges to remain so and even more join them in becoming test optional.

I can also see colleges considering a student’s family income and wealth, as this is a significant predictor of student diversity. Wealth is especially useful because even high income Blacks and Latinos have a fraction of the average wealth of Whites. Many selective colleges already go beyond FAFSA and require a second form called the CSS Profile to get a more complete picture of a family’s assets. Given the relationship between wealth, opportunity, and diversity, I can see an expansion of the use of the CSS Profile and consideration of wealth as another means of objectively assessing opportunity and broadening diversity. Both UCLA Law and UC Davis Medical School have made national news in their effective use of wealth as a race neutral part of their admissions process to successfully increase diversity.

I think colleges may also want to review how they allocate their financial aid, so that it most effectively supports any changes in their admissions process, especially if their strategy includes yielding more students with financial need. Many colleges have increased awarding of “merit” based aid, shifting funds from need-based financial aid to merit-based financial aid. And this merit aid and tuition discounting to kids that don’t need it comes out of a financial aid budget that could help underrepresented students who need aid.

Jeff: Finally, how do you think this decision will impact our work as IECs?

Michael: As IECs, we have a duty to help our clients prepare the strongest possible applications to their colleges. If we are working with students of color who are applying to colleges where diversity is an institutional priority, it will be important for us to help them articulate “how race affected his or her life, be it through discrimination, inspiration, or otherwise,” as Chief Justice Roberts stated.

At the selective institutions that are most affected by this decision, an important part of their work is building a diverse class. For students who are not underrepresented, selective colleges will be interested in how they will contribute to diverse communities, including if and how they value students from backgrounds different from their own, and how they demonstrate it through their actions. As we do for all our students, this includes advising and guiding them to present themselves authentically. 

Michael formerly served as director of undergraduate admissions for the University of California system, and as faculty for the Harvard Summer Institute on College Admissions. Jeff is a CEP deeply interested in questions of equity and is the father of two biracial daughters who have been through the college admission process.