SCOTUS Ruling: Higher Education and The Constitution

Admissions Practices, Judicial Deference, and National Accreditation

“We hold these truths to be self-evident, that all men are created equal…”
-The Declaration of Independence, July 4, 1776

“No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”
-US Constitution, 14^th Amendment, Equal Protection Clause

by: COL (Ret) Theodore Croy, PhD, PT

The Supreme Court ruled (6-2) in favor of the Students for Fair Admissions, Inc vs the President and Fellows of Harvard College and the University of North Carolina on the basis that affirmative-action based collegiate admissions policies and practices violate the 14^th Amendment. The majority and concurring opinions bring forward three issues worthy of further discussion: collegiate admissions practices, judicial deference, and national accreditation.

The court argues rightfully that higher education admissions is a “zero sum game;” particularly at these two universities who enjoy large annual applicant cohorts up to thirty times larger than the planned enrollment of the incoming student cohort. The majority opinion reveals an embarrassing mechanism of undergraduate application processing via “readers” who categorically score each application across many quantitative or qualitative criteria; including grades, test scores, extracurriculars and, race; forming the basis of the lawsuit. These practices essentially resulted in a socially engineered student cohort in a fashion that, perhaps aligned with the two universities diversity goals, however, were “not sufficiently coherent for purposes of strict scrutiny (p6)” and “cannot be subjected to meaningful judicial review.” In short, the admissions practices nor policies could not be successfully defended when put up against the Constitution’s equal protection clause. As a prior admissions officer and program director responsible for overseeing graduate program admissions, a ruling like this should now spark a wider review of admissions policies and practices ahead of further accrediting agency inquiry. The lesser of two remedies here would be for the schools to initiate this review proactively rather than to wait until it is mandated by their accrediting agencies via new, and Constitutionally aligned admission policies.

The universities argued for SCOTUS to “trust us” (p7) essentially arguing for judicial deference; a long-standing practice where US courts leave academic decisions involving students to the expertise of faculty provided that the students’ rights to due process and appeal are upheld. In this SCOTUS ruling, the concept of judicial deference has been dealt a considerable Constitutional blow and the high court cannot defer to the universities and denounced them as untrustworthy arbiters of racial discrimination and educational goal achievement (Thomas, p28). As I understand judicial deference, it applies to actual enrolled students within the university and the policies on grading, disciplinary action, removal, or graduation; actions largely governed by the faculty. This case, however, deals with applicants seeking to become students, making the universities claim towards deference of their admissions practices spurious. College applicants have rights which begin upon application submission and should include the right to undergo a standardized process planned and governed by their chosen school to receive, review, and equally apply admissions policies. This process should include administrative personnel and faculty, in a manner that can sustain both accreditation-level and, in this case, judicial review. If collegiate presidents spurn this ruling, then are they prepared to have students taking checkered transcripts, substandard faculty or campus-level disciplinary actions into court for further review? Students and parents are the key stakeholders in collegiate admissions and their viewpoints should take primacy amid the social goals of the schools themselves.

These universities are accredited by the New England Commission on Higher Education (NECHE) for Harvard and the Southern Association of Colleges and Schools Commission on Colleges (SACSCOC) for UNC. These bodies oversee the admissions practices of these, and many other, schools within their regions. The broad standards for admissions policies indicate that the universities practices align with the university’s goal, however, the SCOTUS has now ruled that neither of them align with the 14^th Amendment creating quite an issue for both the schools and the accrediting bodies themselves who oversee additional schools with perhaps similar admissions practices. More specifically, how does the SCOTUS review of Harvard’s admissions program demonstrate “coherence” within NECHE Standard 4.3? How should these accreditors review this ruling, and subsequently reevaluate current accreditation standards to ensure that the rights of college applicants in the United States are upheld in the future? What is the role of these regional accrediting agencies in evaluating and implementing a monumental SCOTUS ruling like this within the context of national accreditation and public trust?  These schools may perceive a loophole in the ruling and continue on a path of their choosing; a possible outcome. Should these schools be placed on an institutional warning or be required to show cause and remediate with new admissions plans demonstrating adherence to the ruling? Several institutions at NECHE and SACSCOC have recently been placed under accreditation warning and require on-going reports for concerns regarding institutional practices involving students and resources. It begs further inquiry as to how the ongoing accreditation of these two schools will continue unabated within the presence of admission policy standards that have now failed SCOTUS review.

The Declaration states the truth that “all men are created equal” and the 14^th Amendment goes further in that they should be afforded equal protection under the law. Equal protection within the context of collegiate admissions includes that the accrediting bodies and the schools themselves have and uphold admissions policies that can withstand internal and external scrutiny within the academic and legal arena. The social engineering of affirmative action based admissions overweighted and categorized applicant characteristics to achieve goals that these universities could neither define nor defend; particularly within the context of their own past practices (Thomas p28).

Academic admissions policies can and have been built to align with university and program goals towards academic achievement, graduation, and subsequent military service in a fashion that I believe, has provided equal protection to applicants. Current centralized application systems have enabled us to build best practices that ensure the rights of the applicant to receive a fair review and inform the admission of students into educational programs who can and have achieved adequate educational outcomes according to the mission of the institution and the military services; nothing more. These practices can and have survived internal and external scrutiny from university and specialized accrediting agencies.

Colonel (Ret) Croy retired from the Army in 2022 and served as the Dean of the Graduate School at the Army Medical Center of Excellence at JBSA-Fort Sam Houston where he oversaw the creation and management of military graduate school admissions policies and practices for allied health programs at the master’s and doctoral level each with university level and specialized accreditation requirements. He instituted the incorporation of centralized application systems into admissions practices improving the fairness and defensibility of nationwide student recruitment and enrollment practices. The opinions herein are his own.