Fair Admissions Model Legislation Aids the Battle Against Racial Preferences

When the U.S. Supreme Court issued the landmark ruling in Students for Fair Admissions v. Harvard College, bundled with the University of North Carolina (UNC), the higher education status quo latched on to one particular sentence in the conclusion:

[N]othing in this opinion should be construed as prohibiting universities from considering an applicants’ discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.

Even though the court ruling in its entirety unambiguously puts an end to race-based affirmative action, practitioners and proponents of race-preferential college admissions are determined to ignore the principle matter of equal justice and overinterpret the minute exception as wiggle room to continue business as usual.

In response to the ruling, Harvard reaffirmed its support of campus diversity and justice. The University of California (UC), located in a state where racial preferences in public education have been banned since 1996, promises to share its successful experiences and different strategies in promoting “a sufficiently diverse student body or one that is representative of the state’s demographics.” In plain English, UC leadership wants to teach other universities and colleges how to racially balance with facially race-neutral tools and factors acting as race proxies, which the system has done in stealth for years. In its statement, Columbia University vows to “find a durable and meaningful path to preserve [diversity].”

The collective defiance to the end of an era of unfair, discriminatory college admissions means that college bureaucrats will devise innovative ways to practice racial preferences and only pay lip service to the ban. Consequently, defenders of equality and merit-based admissions must go beyond the court system to ensure the enforcement of the Harvard and UNC rulings.

With their joint work in the Fair Admissions Act, the James G. Martin Center for Academic Renewal and UCLA Dukeminier Distinguished Professor of Law Richard Sander have answered the need to ensure that higher education institutions practice race-blind admissions by way of legislation. The Fair Admissions Act is a well-crafted example of model legislation, which can be adopted by different state legislatures throughout the country, to provide “an enforcement mechanism” for the affirmative action court ruling. The Act fosters fairness, transparency and integrity in the college admissions process with the following steps:

  • Colleges and universities receiving state funding cannot discriminate on the basis of race, color, or national origin. Factors that disproportionately advantage or disadvantage a particular racial group cannot be considered, unless the factors are related to quantifiable goals or there is not a less discriminatory alternative.
  • State-supported institutions cannot award financial aid to students based on race, color, or national origin.
  • These institutions are encouraged to articulate their goals and how their admissions process aid these goals.
  • These institutions must collect and publish admissions data, including standardized test scores, high school GPAs, schools’ weighting formulas, admission algorithms, and the race, color, and national origin of each applicant for scholarly analysis.
  • All first-year undergraduate students, with some notable exceptions, will be required to submit standardized test scores.

This last step is particularly important, as a growing number of American universities and colleges are doing away with considering standardized tests in their undergraduate admissions to embrace the ideological call for diversity and equity. The war on tests, in my previous analysis based on admissions data from UC Berkeley, can be a powerful instrument of racial balancing. Schools replace standardized testing with subjective factors including essays, teacher recommendations and extracurriculars to increase representation of so-called underrepresented minorities who had been allegedly harmed by “racist” and “biased” discrepancies in testing scores. Over 1,900 accredited four-year colleges in the U.S. have made standardized tests optional in admissions, and over 80 have gone completely “test-blind.” The test-optional movement, built upon the debunked assertation that college entrance exams exacerbate systemic inequities, directly attacks academic excellence and erodes transparency in the admissions process. As such, legislation aimed at validating or invalidating research on test scores can provide rationale for pushing against the assault on standardized testing.

Overall, the Fair Admissions Act offers a blueprint for state lawmakers to reclaim fairness and merit in their state-level collegiate systems. If it is adopted, the Supreme Court’s affirmative action ban can be concretized and its legacy preserved. According to Jenna Robinson, the president of the Martin Center:

Some universities have already announced their plans to circumvent the Supreme Court’s decision on racial preferences. The Fair Admissions Act would ensure that state universities comply and would help to restore merit to higher education.

Even before the court ruling was released, scholars and observers had warned about various issues with race-neutral alternatives. A June 2023 Manhattan Institute brief presents these problems as “thorny trade-offs” in the post-affirmative-action future when diversity-minded higher education institutions will use race-neutral preferences as subterfuges that select facially non-racial determinants as proxies for race. Doing so will render the ban on racial preferences futile, so long as schools continue to prioritize ideological mandates over excellence, fairness, merit, and transparency.

In this sense, a legislative proposal like the Fair Admissions Act, if implemented, is necessary for higher education reformers who want to ameliorate and start to cure the intellectual rot and corruption that have fertilized the far-left’s culture war on young Americans.

Let’s hope there is sufficient political will to push these proposals in state legislatures where sensible lawmakers are determined enough to reform their higher education institutions.

Photo by KLH49 — Canva Stock


  • Wenyuan Wu

    Wenyuan Wu is Executive Director of the Californians for Equal Rights Foundation. Twitter: @wu_wenyuan

2 thoughts on “Fair Admissions Model Legislation Aids the Battle Against Racial Preferences

  1. This is an excellent draft, but I encourage you to consider adding a baccalaureate student examination to the traditional American criteria of standardized test scores and grade point average. The former have been established in Europe for nearly four hundred years, and have the beneficial backwash effect of encouraging extended discourse of the sort you excel in, Wenyuan, which is severely limited by traditional American assessment (with the exception of the Advanced Placement programme, which has been growing in its admission importance in recent years, as the SAT subject tests have disappeared). The admission formula I support = 50 per cent for such a matriculation examination, 30 per cent for a standardized, common university admission test, and 20 per cent for a college grade point average, with diversity targeted, via teachers’ essays and so on, only as a tie-breaker among those with equal academic merit scores, merit being defined as I have just outlined above.

  2. No, it needs to be:
    “state-supported institutions cannot award or administer financial aid to students based on race, color, sex, gender identity, or national origin.

    You need to include the “or administer” because otherwise all of your race-based scholarships will instantly become “outside scholarships” that the university is not actually awarding. UMass has been pulling this stunt for years.

    By saying that the university can’t “administer” the scholarship it largely prevents it because (a) the funds can’t go through the bursar’s office — they have to cut a check to the student directly and hope he doesn’t just spend it on other stuff and (b) it becomes a logistical hurdle to confirm his academic status. They no longer will get a list of eligible applicants from the school, they’ll have to find them themselves.

    I include sex because that’s what the SFFA suit didn’t include, but ought to have. They say it’s about equity (Title IX notwithstanding), so where are the scholarships for men in nursing? Men in education are badly needed, where are those scholarships? Law is now majority female, but while the scholarships for women remain, there are none for men.

    And what is not said about race-based scholarships, what *can’t* be said about them, is that there are more White people living in poverty than there ARE Black people, so if they were awarded in any equitable manner (say randomly), the majority of them would go to WHITE kids. And that would not be acceptable, hence the gamesmanship.

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