EDITOR’S NOTE: Mark Merritt served as vice chancellor and general counsel for the University of North Carolina at Chapel Hill from 2016-18, as Students for Fair Admissions v. UNC made its way through the courts.

By Mark Merritt

CHARLOTTE (August 3, 2023) – What we learn in college is not limited to the classroom. 

The interactions with and exposure to other students who come from different places, have different economic circumstances, have different skin colors or religions or have different political viewpoints are a big part of what makes a university great.

After the Supreme Court’s decision in Students for Fair Admissions, Inc. v. University of North Carolina, my hope is that UNC’s Board of Trustees (BOT) remains committed to maintaining a diverse student body in a way that is real and that there is not a chilling effect on who applies to UNC or how admissions officers operate.

The bottom line for me is that universities need to focus on race-neutral alternatives to create diversity and intensify their outreach to historically underrepresented and economically disadvantaged communities. I worry that overly focusing on what I call “position,” as opposed to trajectory toward future success, will have adverse effects on rural North Carolina students who lack many of the educational resources and opportunities students in our urban communities have had for decades.  

In Chief Justice John Roberts Jr.’s majority opinion, he stated: “Nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration or otherwise.” Every applicant needs to be able to tell his or her story in the admissions process.

He went on to make clear that the discussion of race had to be tied to that applicant’s attributes, such as the applicant’s courage or determination, and not used as an indirect way to get around the Court’s ruling.¹ I am confident that UNC’s admissions officers will adhere to the Court’s ruling. 

With respect to the Board of Trustees’ resolution,² its text does not go beyond what the Supreme Court stated. The real test is how the BOT will address this issue in practice. The resolution lends itself to be construed as providing a level of oversight by the BOT on admissions decisions that it has never undertaken and is not really qualified to make. That, in turn, may affect whether diverse applicants apply or how their applications are considered.

There are many misconceptions of what admissions officers do and how they go about shaping an incoming class. The goal of admissions officers is to select applicants who have demonstrated academic excellence and hold a diverse set of skills, interests, backgrounds and attributes. Such students create an enriched learning environment. Applicants are attracted to schools with diverse student bodies, employers favor graduates who have experience with and are able to work with people of diverse backgrounds, and there is energy and greater creativity when differences are present.

The Supreme Court’s decision does not reject the goal of diversity. It holds that race cannot be used as a criterion to reach that goal. 

UNC would make a mistake if its admissions officers construed the BOT’s resolution or the Supreme Court’s opinion as inconsistent with building an enriching educational environment and a diverse student body.

States that have decided not to use race in admissions, such as California, strive to create diverse learning environments with greater outreach to historically underrepresented communities, and by weighing race-neutral attributes such as socioeconomic circumstances, first-generation college status, military backgrounds, community college success and other means to facilitate a diverse educational environment. I encourage the BOT to embrace such efforts to make sure UNC continues to provide opportunities to a diverse student body that benefits all students. 

The Supreme Court did not in any way rule out the use of race-neutral alternatives to build diverse student bodies.

The other misconception in admissions is that a student’s GPA and test scores should determine who is admitted. These are seen as objective measures. 

In reality, admissions officers don’t focus just on an applicant’s position with respect to what might be labeled objective, measurable academic achievements.

They also look at a student’s academic trajectory, whether they have taken advantage of the educational opportunities available to them, and whether they show intellectual curiosity and capability for growth. To focus solely on an applicant’s position in life will inevitably favor students whose parents can provide them every educational advantage along the way, such as private tutoring, SAT and ACT preparation classes, or summer enrichment programs. If we are serious about selecting students based on their ability to succeed in life, we must consider trajectory toward success and not just position at the time of application.

The student body at UNC does not reflect North Carolina’s population now. As noted above, UNC will have to work harder to generate larger pools of diverse students as applicants to maintain the racial diversity it has now. The evidence at trial showed this will be even more difficult absent consideration of race as one of many factors in a holistic review of an applicant’s attributes.

Justice Roberts noted in his opinion, quoting one of UNC’s experts, that race explained 1.2% of in-state admissions and 5.1% of out-of-state admissions. Those numbers do not cry out as support for discrimination. UNC worked hard in its admissions process to create the diverse and enriched educational environment that has made it so successful. Every year, UNC has more qualified applicants than it can admit, and UNC must make difficult judgment calls when its team looks at a student’s trajectory and prospects for success.

I reject the notion that UNC admitted students who did not deserve to be admitted solely based on consideration of the student’s race. I reject the notion that UNC’s admissions program led to any student being admitted who did not earn the right to be there.

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¹ https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf. 
² https://drive.google.com/viewerng/viewer?url=npr.brightspotcdn.com/51/71/c9dfa93e410392de98fdd98076a0/bot-resolution-july-2023.pdf.