College Essays: The Affirmative Action Workaround

Ever since the Supreme Court put an end to Affirmative Action in college admissions many have noticed that Chief Justice Roberts seemed to offer a back door for schools looking to get around it.

At the same time, as all parties agree, 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. See, e.g., 4 App. in No. 21–707, at 1725– 1726, 1741; Tr. of Oral Arg. in No. 20–1199, at 10. But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today. (A dissenting opinion is generally not the best source of legal advice on how to comply with the majority opinion.) “[W]hat cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows,” and the prohibition against racial discrimination is “levelled at the thing, not the name.” Cummings v. Missouri, 4 Wall. 277, 325 (1867). A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race.

In short, students can still write essays about how race has factored into their lives but it has to be specific and not based on checking a box. Within days the Washington Post had published a story about how colleges were already planning to help educate prospective students about how to get around the new limitations on considering race directly in admissions.

Before the ruling, admission leaders and lawyers around the country strategized for months over what would be permissible. Shannon R. Gundy, assistant vice president for enrollment management at the University of Maryland, which until now has considered race as a factor, told higher education leaders in April that universities should advise counselors on strategies for writing letters of recommendation and students about writing admission essays.

“Right now, students write about their soccer practice, they write about their grandmother dying,” Gundy said. “They write about the things that are personal to them. They don’t write about their trials and tribulations, they don’t write about the challenges that they’ve had to experience, and they don’t know how to and they don’t want to. We’re going to have to educate students in how to do that.”

This of course assumed that students weren’t already well aware that the essays were the best chance they had to make race work for them. The NY Times had already published an account from a college professor who had spent his grad school years making side money by helping students with applications. He said the students already knew how the game worked.

Nearly every college admissions tutoring job I took over the next few years would come with a version of the same behest. The Chinese and Korean kids wanted to know how to make their application materials seem less Chinese or Korean. The rich white kids wanted to know ways to seem less rich and less white. The Black kids wanted to make sure they came across as Black enough. Ditto for the Latino and Middle Eastern kids.

Seemingly everyone I interacted with as a tutor — white or brown, rich or poor, student or parent — believed that getting into an elite college required what I came to call racial gamification. For these students, the college admissions process had been reduced to performance art, in which they were tasked with either minimizing or maximizing their identity in exchange for the reward of a proverbial thick envelope from their dream school.

Students applying for top colleges aren’t dumb. And now that the rules have changed, they are still doing their best to work the system. From today’s NY Times:

Astrid Delgado first wrote her college application essay about a death in her family. Then she reshaped it around a Spanish book she read as a way to connect to her Dominican heritage…

The first draft of Jyel Hollingsworth’s essay explored her love for chess. The final focused on the prejudice between her Korean and Black American families and the financial hardships she overcame…

In her initial essay, Triniti Parker, a 16-year-old who aims to be the first doctor in her family, recalled her late grandmother, who was one of the first Black female bus drivers for the Chicago Transit Authority.

But after the Supreme Court’s decision, a college adviser told her to make clear references to her race, saying it should not “get lost in translation.” So Triniti adjusted a description of her and her grandmother’s physical features to allude to the color of their skin.

This is exactly the sort of thing that everyone predicted would happen. College essays are now a back door for putting race front and center before admissions officers. The schools haven’t given up on race-conscious admissions, they are just doing their best to find a legal workaround that will allow them to generate the same outcome. Put another way, the same incentives and disincentives are still there depending on your race you just have to be a little more explicit about it to game the system these days.

Critics of affirmative action say they are worried about essays becoming a loophole for colleges to consider an applicant’s race. “My concern is that the system will be gamed,” said William A. Jacobson, a law professor at Cornell University who founded the nonprofit Equal Projection Project.

There was one note of hope in this story though that may be all it is.

Ms. Morales cited one student who added a mention of his “conservative” Chinese family as an example. “The explicit disclosure of his ethnicity would not have made it to the final draft prior to the ruling,” she said.

An Asian student who no longer feels the need to hide his identity could be a sign of progress. I hope that’s the case but of course we don’t know how this story will work out. It’s still possible that his decision to be forthcoming about his identity will be quietly held against him. After all, Asian students are vastly overrepresented at top schools. If this student is seen as a representative of his race rather than an individual some admissions officer could mentally (or physically) file his application in the “already overrepresented” pile. That shouldn’t happen but if racial benefits are still being given out for a limited number of seats, someone is going to lose out.

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