Part A: Overcoming the Coming Minority Professionals Pipeline Problem
The SCOTUS Harvard/UNC case decision reported that only about 25% of institutions of higher learning (universities and colleges) in the United States have been undertaking race-based and national origin-based admission decisions. I have previously seen uncertain reports that perhaps 100 colleges and universities have undertaken race/national origin-based admission practices. So, the SCOTUS report could be correct.
However, the volume of the race/national origin-based admissions the universities have reported in the lawsuits which have reached the SCOTUS have been quite large as a percentage and a number (from 2% of the entering class to a more typical 10% (Harvard; University of Michigan Law School), 16% at UC Davis Medical School, and 25%, at UNC).
The litigated database is of course quite small. Apart from the uncertainty about how many colleges and universities have undertaken race/national origin-based admission practices, no one knows whether the litigated case admission preferences practices are representative of all colleges and universities which have used race/national origin-based admission practices.
Regardless how you count, it appears certain that a significant number of African American and Hispanic candidates for colleges and universities will be affected. Indeed, without quantifying their concerns, both Harvard and UNC argued to the SCOTUS, for example, that there was a large need to continue race/national origin-based admission practices. Both schools also argued that the result of returning to “colorblind” admission policies would have a large impact on the diversity of their admissions. As a result, employers will eventually be affected as they look out their recruiting doors in coming years to find that the diversity of their applicant pools for professional, technical, and managerial positions has shrunken noticeably.
UNC’s race-based/national origin-based admission practices led annually to the admissions of about a thousand students at UNC alone according to the SCOTUS Majority Opinion, discussed more fully below (with which five other Justices joined for a total of 6 of the 9 Justices). These are students who would not otherwise have been admitted to UNC but for their race/national origin. One can only speculate how many tens of thousands of Black and Hispanic graduates were admitted to colleges and universities based on their race/national origin who now will not be admitted to those same colleges and universities going forward. When one adds up the affected admission decisions of almost 100 universities and colleges which have reportedly engaged in race/national origin-based admission decisions in the last two decades since the SCOTUS “greenlighted” certain narrowly prescribed race-based admission practices, the annual total is unknown (to anybody) but is obviously going to be a very big number. One hundred times anything but zero is a big number. 100 x 10 students = 1,000. 100 x 100 students = 10,000. 100 x 1,000 = 100,000.
Now that lawful race-based/national origin-based preferences are cut-off as of this Fall’s admission decision-making cycle to admit students for the Fall 2024 entering classes, the graduating classes of 2028 will look QUITE different from a diversity perspective to prospective employers than they have for the last decade-plus.
In Part B, below, we discuss what employers might start doing now to mitigate that coming drop-off of diversity in their professional, technical/managerial applicant flows beginning in 2028. The bottom half of Part B also reports the latest graduation rates, by race and national origin for both college/university graduations and for high schools in the United States. Spoiler Alert: Asians continue to graduate in higher percentages, followed by Whites, and then drop back significantly to Hispanics and then to African Americans and then Native Americans.
This Part A attempts to merely size the coming diversity shortfalls employers might reasonably confront in a very short 3 or 4 years, as described below.
Some examples follow to provide some rough context and to illustrate the coming minority professionals, technical, executive pipeline problem now scheduled to reach the front doors of employers (beginning in the Fall of 2027 when most employers start hunting for their student hires to graduate the following year to fill professional positions in mid-2028). We have also interlaced some examples of what has previously happened, in the real world, when race-based university admission preferences stopped.
1978: The University of California at Davis Medical School set a preference for African Americans of 16% of its entering class of medical doctors (16 seats in the then 100 seat Medical School class). The SCOTUS struck down this admission practice, which did not cause Black applicants to compete with non-Black applicants for admission) as an unlawful “quota.” Ending the quota reportedly immediately thereafter reduced ensuing classes to one or two African American admittees.
1996: The University of California – Abolition of race/national origin-based admission practices at the University of California as a result of the passage of Proposition 209 (amending California’s Constitution to ban the use of race in all state programs) resulted in a reduction of minority enrollment of approximately 12% system-wide throughout the 9-campus UC university system. See the UC’s Bleemer report. In 1996, UC enrolled over 162,000 students to its entering classes in the undergraduate and graduate divisions. See UC’s Fall Admissions report. 12% x 162,000 = 19,440 students.
The prestigious law school (then named Boalt Hall; renamed in 2020) at the UC’s headquarter campus in Berkeley, California where I used to recruit first-year lawyers, traditionally had 14 or so Black students in its then approximately 275 student graduating law school class. Immediately after the passage of Prop 209, the admission of Black students to then Boalt Hall dropped to an average of two…a 7x drop.
2003: The University of Michigan Law School’s race/national origin-based admission practices—which the SCOTUS upheld in its 2003 Grutter decision with specific recipe-like instructions as to pitfalls to avoid constitutional law violations—reported that it caused the entering (1L) class in 2003 to be slightly over 14% Black, but would have been slightly over only 4% without the race/national origin-based admission preference practices (resulting in a race/national origin based preference of about 10% of the entering class). The Law School entering (1L) class is typically about 350 students according to the SCOTUS’ Grutter case decision. 10% x 350 seats in the entering class=about 35 race/national origin-based admissions per year.
2003: The University of Michigan Undergraduate Schools awarded 20 admission points to “underrepresented minorities” (African Americans, Hispanics, and Native American Indians) on a 100-point admission scale. The effect of this race/national origin-based preference was that it guaranteed the admission of almost all “underrepresented applicants” because they were then deemed “qualified” for admission within the UofM’s admission Guidelines after adding the 20-point race/national origin bump. The UofM admitted that it admitted to the undergraduate school “virtually every qualified” underrepresented applicant in the 1995-1996 school year (443 Blacks and 229 Hispanics).
Because of this practice, which the SCOTUS struck down as a form of unlawful “quota,” it is not known what percentage of the undergraduate class applicants who were Black, Hispanic, or Native American would have otherwise been admitted to the undergraduate school without the addition of the 20-point race/national origin admission preference. The University of Michigan’s then undergraduate class for 1995 (the first of two of the years in contention in the Gratz lawsuit successfully challenging the University of Michigan’s undergraduate admission practices) was composed of 51,213 students. See UofM, Historic Enrollment Data for 1995-1996 at p. 6 of 23. Even assuming the worst case (that none of the Black, Hispanic and Native American students would have been admitted without the 20-point race/national origin admission preference), this was a small volume preference of only about 1.3% of the entering Freshman undergraduate class (443+229=673 divided by 51,213).
2023: Harvard University’s race/national origin-based admission preferences added about 160 African American and Hispanic students to Harvard’s entering freshman undergraduate class for apparently more than a decade according to Justice Gorsuch’s Concurring Opinion in the Harvard/UNC case decision citing to the Federal District Court’s factual findings and conclusions of law in the Harvard trial (see his Slip Opinion at pp 9-10):
“’Race conscious admissions will always penalize to some extent the groups that are not being advantaged by the process.’” 397 F. Supp. 3d, at 202–203.
Consider how this plays out at Harvard. In a given year, the university’s undergraduate program may receive 60,000 applications for roughly 1,600 spots.
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All told, the district court made a number of findings about Harvard’s use of race-based tips. For example: “[T]he tip[s] given for race impac[t] who among the highly qualified students in the applicant pool will be selected for admission.” Id., at 178. “At least 10% of Harvard’s admitted class . . . would most likely not be admitted in the absence of Harvard’s race-conscious admissions process.” Ibid. Race-based tips are “determinative” in securing favorable decisions for a significant percentage of “African American and Hispanic applicants,” the “primary beneficiaries” of this system. Ibid. There are clear losers too. “[W]hite and Asian American applicants are unlikely to receive a meaningful race-based tip,” id., at 190, n. 56, and “overall” the school’s race-based practices “resul[t] in fewer Asian American and white students being admitted,” id., at 178. For these reasons and others still, the district court concluded that “Harvard’s admissions process is not facially neutral” with respect to race. Id., at 189–190; see also id., at 190, n. 56 (“The policy cannot . . . be considered facially neutral from a Title VI perspective.”).”
So, taking Justice Gorsuch’s report of the District Court’s findings, 10% x 1600 seats in Harvard’s entering Freshman class = 160 African Americans and Hispanic students who will not be admitted to Harvard in 2024 and who will not be graduating in 2028 for employers to then harvest.
2023: UNC’s trial resulted, I thought, in an uncertain number and percentage of “underrepresented minorities” (defined below) who UNC would not have admitted but for their race/national origin. However, Justice Sotomayor in her Dissenting Opinion in the Harvard/UNC case decision reported that the District Court (the trial Judge) “found” two percentages that drove race/national origin-based admission “decisions” (that word is important, as discussed below). When one applies those percentages to the number of applicants elsewhere reported in the Court’s factual findings, one gets a percentage of diverse students who benefited from UNC’s race/national origin-based admission practices entering UNC’s 4200-seat undergraduate class of approximately 25%. Here is what we know.
First Justice Gorsuch:
“In a typical year, about 44,000 applicants vie for 4,200 spots. 567 F. Supp. 3d, at 595.” (See Gorsuch Concurring Op at p. 10).
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The district court found that “UNC’s admissions policies mandate that race is taken into consideration” in this process as a “‘plus’ facto[r].” Id., at 594– 595. It is a plus that is “sometimes” awarded to “underrepresented minority” or “URM” candidates—a group UNC defines to include “‘those students identifying themselves as African American or [B]lack; American Indian or Alaska Native; or Hispanic, Latino, or Latina,’” but not Asian or white students. Id., at 591–592, n. 7, 601. At UNC, the admissions officers’ decisions to admit or deny are “‘provisionally final.’” Ante, at 4 (opinion for the Court). The decisions become truly final only after a committee approves or rejects them. 567 F. Supp. 3d, at 599. That committee may consider an applicant’s race too. Id., at 607. In the end, the district court found that “race plays a role”—perhaps even “a determinative role”—in the decision to admit or deny some “URM students.” [emphasis added: EDITORIAL NOTE: you will see why later when you get to Justice Sotomayor’s offering on this issue of the extent and impact of UNC’s race/national origin-based admission practices] Id., at 634; see also id., at 662 (“race may tip the scale”). (See Gorsuch Concurring Op at pp. 10-11).
Second, next up, Chief Justice Roberts:
“Respondents [Harvard and UNC] also suggest that race is not a negative factor because it does not impact many admissions decisions. See id., at 49; Brief for University Respondents in No. 21– 707, at 2. Yet, at the same time, respondents also maintain that the demographics of their admitted classes would meaningfully change if race-based admissions were abandoned. And they acknowledge that race is determinative for at least some—if not many—of the students they admit. See, e.g., Tr. of Oral Arg. in No. 20–1199, at 67; 567 F. Supp. 3d, at 633. How else but “negative” can race be described if, in its absence, members of some racial groups would be admitted in greater numbers than they otherwise would have been? The “[e]qual protection of the laws is not achieved through indiscriminate imposition of inequalities.” Shelley, 334 U. S., at 22.” [footnote 6 goes here]
This is footnote 6, which sets off a war of footnotes with Justice Sotomayor [who will be up next]:
“JUSTICE JACKSON contends that race does not play a ‘determinative role for applicants’ to UNC. Post, at 24. But even the principal dissent [who is Justice Sotomayor] acknowledges that race—and race alone—explains the admissions decisions for hundreds if not thousands of applicants to UNC each year. [emphasis added] Post, at 33, n. 28 (opinion of SOTOMAYOR, J.); see also Students for Fair Admissions, Inc. v. University of N. C. at Chapel Hill, No. 1:14–cv–954 (MDNC, Dec. 21, 2020), ECF Doc. 233, at 23–27 (UNC expert testifying that race explains 1.2% of in state (sic) and 5.1% of out of state admissions decisions); 3 App. in No. 21–707, at 1069 (observing that UNC evaluated 57,225 in state (sic) applicants and 105,632 out of state applicants from 2016–2021).”
Editorial Note: These in-state and out-of-state applicant numbers are important since they are the multipliers for the percentages of admission “decisions” which were driven by race or national origin.
- 1.2% x 57,225=686 applicants admitted based on their race/national origin from the in-state applicant pool during the 6-year period at-issue in the litigation. These are reportedly admission “decisions” [NOT seats in the entering class…i.e., NOT 1.2% x 4,200 seats] as Chief Justice Roberts reports the Expert Witnesses finding;
- 5.1% x 105,632=5,387 applicants admitted based on their race/national origin from the out-of-state applicant pool during the 6-year period at-issue in the litigation. These are reportedly admission “decisions” [NOT seats in the entering class…i.e., NOT 5.1% x 4200 seats] as Chief Justice Roberts reports the Expert Witnesses finding;
So, if these data are correct as the District Court (the trial court) found (see Sotomayor decision, below), about 1,012 applicants would have been admitted to UNC each year (686+5,387=6,073 race/national origin-based admission decisions for the six-year period. 6,073 divided by 6-years=1,012/yr) based on their race/national origin [= almost 25% of the approximately 4,200 entering undergraduate class UNC admitted to the campus each year.
If what the District Court found was 1.2% of the entering class as seated, the math would look like this:
1.2% x 4,200 = 50 race/national origin-based admissions/yr
5.1% x 4,200 = 214 race/national origin-based admissions/yr
Third, and finally, here is Justice Sotomayor:
In the second half of her footnote 28 [see Justice Sotomayor’s Dissenting Opinion at p. 33] which Chief Justice Roberts called out, as noted above, she crossed swords with him, as follows:
“The District Court in the UNC case found that “race plays a role in a very small percentage of decisions: 1.2% for in-state students and 5.1% for out-of-state students.” 567 F. Supp. 3d 580, 634 (MDNC 2021). [Editor emphasis added] The limited use of race at UNC thus has a smaller effect than at Harvard and is also consistent with the Court’s precedents. In addition, contrary to the majority’s suggestion, such effect does not prove that “race alone . . . explains the admissions decisions for hundreds if not thousands of applicants to UNC each year.” Ante, at 28, n. 6. As the District Court found, UNC (like Harvard) “engages a highly individualized, holistic review of each applicant’s file, which considers race flexibly as a ‘plus factor’ as one among many factors in its individualized consideration of each and every applicant.” 567 F. Supp. 3d, at 662; see id., at 658 (finding that UNC “rewards different kinds of diversity, and evaluates a candidate within the context of their lived experience”); id., at 659 (“The parties stipulated, and the evidence shows, that readers evaluate applicants by taking into consideration dozens of criteria,” and even SFFA’s expert “concede[d] that the University’s admissions process is individualized and holistic”). Stated simply, race is not “a defining feature of any individual application.” Id., at 662; see also infra, at 48.”
Editorial Note: That last sentence spars with her own report at the beginning of the footnote reporting what the District Court found:
“The District Court in the UNC case found [emphases added] that “race plays a role in a very small percentage of decisions: 1.2% for in-state students and 5.1% for out-of-state students.” 567 F. Supp. 3d 580, 634 (MDNC 2021).”
The problem with that observation, too, is that while the percentages seem small, the numbers of race/national origin-based admission “decisions”-NOT seats in the class (which Roberts/Sotomayor and the District Court reference) is very large. [As the former Prime Minister of Great Britain, Benjamin Disraeli (1874-1880) once famously said: “There are three types of lies: lies, damn lies and statistics”.] So, statistics are often very confusing. In this case, the percentage of times race/national origin controlled the admission “decision” (as found by the trial Judge based on Expert testimony) multiplied by the large volume of applicants results in a very large number of race/national origin-based admission “decisions” relative to the relatively smaller (not small) number of entering class seats UNC had available to fill each year (4,200). To make sense of Justice Sotomayor’s footnote, I very much think she thought the District Court’s decision reporting 1.2 % and 5.1% selection rates based-on race/national origin applied to seats in the class, and not to admission “decisions.” If she thought that, it gives meaning to her footnote conclusion that “…’race plays a role in a very small percentage of decisions’”.
2023: The University of Texas at Austin is another big school and was, until the Harvard/UNC case decision, the only state school in Texas considering race in its admissions process. That obviously must now stop, in addition to the Harvard/UNC case decision, because Texas state law now bans (as of 2023) race/national origin-based admission practices. The June 29, 2023 edition of the Texas Tribune online newspaper quoted a Ms. Stella Flores, a “higher education and public policy expert” at UT-Austin, saying that:
“[t]he [Harvard/UNC] ruling would ‘decimate’ the pool of students of color, particularly in areas like graduate school, science, technology, engineering and medical fields’” at UT-Austin.
In 2023, there are almost 52,000 students enrolled at UT Austin (alone), the “flagship institution of the University of Texas.” The University of Texas system enrolled a record almost quarter-million students in the Fall of 2022. The other state of Texas University, Texas A&M University, has over 152,000 students across its now many campuses. (Everything is bigger in Texas!)
Punchline to End Part A
A 25% drop-off in minority students out of a big school like UNC would be noticeable in employer professional/executive job applicant pools, if that is what is coming. And that is true even before one extrapolates the coming diversity candidate drop-offs for professional/technical/executive jobs from the approximately 100 other universities and colleges around the United States which have been pumping up their minority graduate counts with what in the future will be illegal race/national origin-based admissions practices. Compliance, Diversity, and Talent Acquisition Managers have their work cut out for them to maintain recruitment pools with qualified diverse races and national origins.
Let’s now turn to a practical discussion of how.