After Affirmative Action: Contextual Admissions And The Future Of African American Law School Enrollment

Nathan L. Bennett Fleming (Wake Forest), After Affirmative Action: Contextual Admissions and the Future of African American Law School Enrollment, 76 Okla. L. Rev. 629 (2024): 

The Supreme Court’s decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (“SFFA v. Harvard”) signaled the end of affirmative action in higher education, launching higher education law into unchartered territory. The Court’s mandate of race neutrality in admissions is expected to lead to a steep decline in higher education participation for underrepresented minorities, particularly African Americans. For law schools, the impact of the Court’s decision is expected to be even more harmful because the underrepresentation of African Americans persisted during the affirmative action era. Many scholars have called for implementing socioeconomic admissions preferences as a substitute for race-conscious admissions; however, experts predict that one-third of Harvard’s Latino admits and at least half of Harvard’s African American admits would likely be rejected through use of a class-based admissions. Universities must explore all available tools to secure diversity in higher education.

This Article offers one such solution. In the United Kingdom, university applicants do not disclose their racial backgrounds. Administrators at universities like Oxford and Cambridge use measures of disadvantage and metrics that assess the likelihood of participation in higher education at the neighborhood and school level to make admissions determinations. This Article argues that the U.K.’s contextual admissions model is the strongest race-neutral alternative for achieving African American higher education participation because systemic racism in the United States continues to manifest itself in racialized residential and school-based segregation. As a result, if higher education institutions are not allowed to ask applicants about their race, the best substitute is to rely on measurable outcomes of systemic racial marginalization and stratification to make admissions decisions. This article, published in the immediate aftermath of SFFA v. Harvard, is the first to outline how adopting the area and school-based datasets used in the U.K.’s contextual admissions approach lawfully allows colleges and universities to secure diversity after the end of affirmative action. 

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