College Essays and Diversity in the Post-Affirmative Action Era
Sonja Starr’s Latest Research Adds Data, Legal Analysis to Discussion About Race in College Admissions Essays
Editor’s Note: This story is part of an occasional series on research projects currently in the works at the Law School.
The Supreme Court’s decision in June 2023 to bar the use of affirmative action in college admissions raised many questions. One of the most significant is whether universities should consider applicants’ discussion of race in essays. The Court’s decision in Students for Fair Admissions (SFFA) v. Harvard did not require entirely race-blind admissions. Rather, the Court explicitly stated that admissions offices may weigh what students say about how race affected their lives. Yet the Court also warned that this practice may not be used to circumvent the bar on affirmative action.
Many university leaders made statements after SFFA suggesting that they take this passage seriously, and that it potentially points to a strategy for preserving diversity. But it’s not obvious how lower courts will distinguish between consideration of “race-related experience” and consideration of “race qua race.” Sonja Starr, Julius Kreeger Professor of Law & Criminology at the Law School, was intrigued by the implication of that question, calling the key passage of the Court’s opinion the “essay carveout.”
“Where is the line?” she wrote in a forthcoming article, the first of its kind to discuss this issue in depth in the post-SFFA era. “And what other potential legal pitfalls could universities encounter in evaluating essays about race?”
To inform her paper’s legal analysis, Starr conducted empirical analyses of how universities and students have included race in essays, both before and after the Court’s decision. She concluded that large numbers of applicants wrote about race, and that college essay prompts encouraged them to do so, even before SFFA.
Some thought the essay carveout made no sense. Justice Sonia Sotomayor called it “an attempt to put lipstick on a pig” in her dissent. Starr, however, disagrees. She argues that universities are on sound legal footing relying on the essay carveout, so long as they consider race-related experience in an individualized way. In her article, Starr points out reasons the essay carveout makes sense in the context of the Court’s other arguments. However, she points to the potential for future challenges—on both equal protection and First Amendment grounds—and discusses how colleges can survive them.
What the Empirical Research Showed
After SFFA, media outlets suggested that universities would add questions about race or identity in their admissions essays and that students would increasingly focus on that topic. Starr decided to investigate this speculation. She commissioned a professional survey group to recruit a nationally representative sample of recent college applicants. The firm queried 881 people about their essay content, about half of whom applied in 2022-23, before SFFA, and half of whom submitted in 2023-24.
The survey found that more than 60 percent of students in non-white groups wrote about race in at least some of their essays, as did about half of white applicants. But contrary to what the media suggested, there were no substantial changes between the pre-and post-SFFA application cycles.
Starr also reviewed essay prompts that 65 top schools have used over the last four years. She found that diversity and identity questions—as well as questions about overcoming adversity, which, for example, provide opportunities for students to discuss discrimination that they have faced—are common and have increased in frequency both before and after SFFA.
A Personally Inspired Interest
Although Starr has long written about equal protection issues, until about two years ago, she would have characterized educational admissions as a bit outside her wheelhouse. Her research has mostly focused on the criminal justice system, though race is often at the heart of it. In the past, for example, she has assessed the role of race in sentencing, the constitutionality of algorithmic risk assessment instruments in criminal justice, as well as policies to expand employment options for people with criminal records.
But a legal battle around admissions policies at Fairfax County’s Thomas Jefferson High School for Science and Technology—the high school that Starr attended—caught her attention. Starr followed the case closely and predicted that “litigation may soon be an ever-present threat for race-conscious policymaking” in a 2024 Stanford Law Review article on that and other magnet school cases.
“I got really interested in that case partly because of the personal connection,” she said. “But I ended up writing about it as an academic matter, and that got me entrenched in this world of educational admissions questions and their related implications for other areas of equal protection law.”
Implications in Education and Beyond
Starr’s forthcoming paper argues that the essay carveout provides a way for colleges to maintain diversity and stay on the right side of the Court’s decision.
“I believe there’s quite a bit of space that’s open for colleges to pursue in this area without crossing that line,” she said. “I lay out the arguments that colleges can put forth.”
Nevertheless, Starr expects future litigation targeting the essay carveout.
“I think we could see cases filed as soon as this year when the admissions numbers come out,” she said, pointing out that conservative legal organizations, such as the Pacific Legal Foundation, have warned that they’re going to be keeping a close eye on admissions numbers and looking for ways that schools are circumventing SFFA.
Starr envisions her paper being used as a resource for schools that want to obey the law while also maintaining diversity. “The preservation of diversity is not a red flag that something unconstitutional is happening,” she said. “There are lots of perfectly permissible ways that we can expect diversity to be maintained in this post- affirmative action era.”
Starr’s article, “Admissions Essays after SFFA,” is slated to be published in Indiana Law Journal in early 2025.