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Indiana Law Journal

Document Type

Article

Publication Date

2025

Publication Citation

100 Indiana Law Journal 847

Abstract

The Supreme Court concluded its 2023 decision barring affirmative action in university admissions with a qualification: Although they may not give weight to “race qua race,” universities may consider individual applicants’ discussion of race-related life experience that bears on their strengths and potential. This “essay carveout” provides a potential path forward for universities (and other entities to which the affirmative action ban may eventually apply). But the Court also warned against using it to enact “indirect” affirmative action, and legal advocates of colorblindness stand poised to challenge any use of essays that appears to stray over this line. So where is the line? And what other potential legal pitfalls could universities encounter in evaluating essays about race?

This Article provides the first in-depth analysis of these questions, examining how the essay carveout fits into emerging legal battles over colorblindness, the nature of racial classifications, and racial balancing. It argues that the carveout must be interpreted to allow universities to pursue racial diversity (which remains constitutionally permissible) so long as they use the kind of individualized analysis contemplated by the Court. It assesses the evidentiary hurdles plaintiffs would need to clear to establish that essays are being improperly used. It also examines possible First Amendment viewpoint discrimination challenges to diversity-related essay requirements, concluding that such challenges should fail on the law and on the facts. Finally, to inform these legal analyses, the Article provides two novel sets of empirical evidence testing widespread (but anecdotal) reports that universities are now revamping their approach to essays and that applicants have changed their writing strategies accordingly. I review the essay requirements over a four-year period at 65 top colleges and report the results of a national survey of 881 students who applied to college in the 2022–23 or 2023–24 admissions cycles. I find that diversity, identity, and adversity-focused essay prompts are prevalent and increasing in frequency, and that the large majority of students of color as well as nearly half of white students do discuss their race in their college essays; this latter pattern, though, was already established before Students for Fair Admissions, Inc. v. President & Fellows of Harvard College.

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