Harvard University signaled Thursday that the school might seek loopholes to the Supreme Court's decision striking down its race-based admissions scheme, according to its reaction to the decision.
The Supreme Court struck down using race as a factor in the admissions processes of both Harvard and the University of North Carolina.
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In response, Harvard leadership issued a statement relying on a line of the opinion by Chief Justice John Roberts 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."
"We will certainly comply with the Court’s decision," the letter offered, suggesting talking about race in an application could be a way to notify admissions teams of skin color. "In the weeks and months ahead, drawing on the talent and expertise of our Harvard community, we will determine how to preserve, consistent with the Court’s new precedent, our essential values."
"It's no surprise that schools have come right out of the gate in this way," Devon Westhill, president and general counsel for the Center for Equal Opportunity, told the Washington Examiner. "They have been considering how to maintain their racial diversity goals since the Supreme Court took the cases. However, the court made clear that evaluating an applicant's essay about overcoming race discrimination is 'concretely tied to a quality of character or unique ability' of the individual, not their race."
Harvard President-elect Claudine Gay also issued a statement, saying that the decision will change how the school conducts its admissions process but highlighting the "educational benefit of diversity" and promising "our commitment to that work remains steadfast."
"It's essential to who we are and the mission that we are here to advance," Gay said.
"The court was clear that 'what cannot be done directly cannot be done indirectly,'" Heritage Foundation senior legal fellow GianCarlo Canaparo told the Washington Examiner. "Harvard cannot circumvent this decision by using less obvious means to racially balance their student bodies. It was unlawful for Harvard to discriminate boldly; it is just as unlawful for Harvard to discriminate on the sly."
The University of Michigan, which was not affected by the Supreme Court decision but won a race-based admissions Supreme Court case in 2003, offered its advice Thursday for promoting diversity in light of the ruling.
The 2003 case, Grutter v. Bollinger, was overturned by the Harvard and UNC cases at a federal level. However, in 2006, the voters of Michigan approved Proposal 2, a constitutional amendment that blocked public universities from considering race in its admissions.
"U-M’s experiences demonstrate what research has now shown clearly — that it is much more difficult to achieve racial diversity in the student body using only race-neutral methods than by including race in the admissions process in a narrowly-tailored manner," a letter from university President Santa Ono and provost Laurie McCauley said. "In the face of these challenges, we persist."
Ono and McCauley said finding ways to achieve racial admissions decisions in a legal way requires "innovative strategies" and pointed to its diversity, equity, and inclusion strategic plans they say "resulted in significant progress, and successful and promising models for enhancing diversity."
"I think universities will shift from using race as a 'plus' factor to using overcoming race as a 'plus' factor," South Texas College of Law Houston professor Josh Blackman told the Washington Examiner. "I don't know how much of a difference that new standard will make."
UNC responded less cryptically than Harvard, with Chancellor Kevin Guskiewicz saying the school needs to review the decision and will come out with a plan in the coming weeks.
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"Carolina remains firmly committed to bringing together talented students with different perspectives and life experiences and continues to make an affordable, high-quality education accessible to the people of North Carolina and beyond," Guskiewicz said in a statement. "While not the outcome we hoped for, we will carefully review the Supreme Court’s decision and take any steps necessary to comply with the law."
Harvard decided not to comment further on what the future of admissions will look like. UNC did not respond to a request for comment on the future of admissions.