In 2003, Justice Antonin Scalia predicted that the Supreme Court’s sanctioning of race-conscious affirmative action in higher education would spark future litigation for years to come. And right he was. From defeated claims of discrimination against the University of Texas at Austin to an ongoing lawsuit against Harvard, colleges continue to come under attack for considering race as a factor in admissions decisions.

The recent report of the Department of Justice’s possible investigation of “intentional race-based discrimination in college and university admissions” demonstrates that the assaults aren’t likely to end anytime soon.

As a professor of law and scholar dedicated to ensuring equal educational opportunities for students of color, I believe now is an important time to earnestly consider other methods for diversifying student bodies. Race-neutral alternatives could effectively consider such factors as socioeconomic status and educational background, while supplementing more traditional affirmative action.

‘Race-based’ vs. ‘race-conscious’

When thinking about affirmative action, it’s important to first define (and debunk) a few key terms, starting with “race-based” and “race-conscious” affirmative action.

“Race-based affirmative action” is a misnomer often used to describe some college admissions policies. “Race-based” implies that an admissions decision is made solely because of or based upon an applicant’s race or ethnicity, which could not be farther from the truth. A university’s decision to admit, deny or waitlist an applicant is based upon myriad criteria, ranging from standardized test scores to state of residency. Race is just one of many admissions factors a university may consider.

This approach is more appropriately termed “race-conscious.”

Schools that employ race-conscious admissions policies do so in order to achieve the educational, social and democratic benefits of a diverse student body.

As the Supreme Court held in Gratz v. Bollinger, race is not and cannot be the determining factor under a constitutional race-conscious plan. Therefore, when people claim that an African-American or Hispanic student was admitted because of race, they’re often not only inaccurate but also dismissive of the student’s other numerous attributes that played a role in the university’s decision.

Race-neutral alternatives

Opponents of race-conscious affirmative action often assert that such policies are racist or disproportionately benefit privileged minority students from middle- and upper-class backgrounds.

For its part, the Supreme Court is also skeptical of using racial classifications in governmental decision-making. As a result, it has held that institutions of higher education must afford serious consideration to “workable race-neutral alternatives” before implementing a race-conscious policy.

Importantly, the court’s use of the term “race-neutral” does not mean “race-blind.” That is, universities are permitted to think about how alternative admissions criteria could help them achieve their diversity goals. Race-neutral criteria could include socioeconomic background, high school or undergraduate institution, or class rank. In other words, these are factors that may contribute to a school’s racial diversity, but applicants themselves are not considered based on race.

In some cases, it’s proven difficult for race-neutral admissions policies to achieve the same levels of racial diversity as those achieved through direct consideration of race. However, such measures have been useful in helping to diversify student bodies when used in conjunction with or in lieu of race-conscious affirmative action.

The viability of race-neutral alternatives

When coupled with the stark racial disparities that continue to plague some professions, the uncertain future of race-conscious affirmative action calls for a renewed focus on alternatives that look beyond race alone.

My co-researchers, Dr. Ronald Pitner and Professor Carla D. Pratt, and I recently took a look at one particular aspect of higher education diversity: law school admissions.

Law schools play a unique role in training our country’s next generation of leaders. It is, in fact, vital to the future of our democracy that we continue to provide students from historically underrepresented racial groups with access to legal education. And yet, the legal profession was recently determined to be “one of the least racially diverse professions in the nation.”

To help law schools improve their diversity, we examined the relationship between race and race-neutral identity factors in law school admissions. The project, which was funded in part by a grant from AccessLex Institute, surveyed over a thousand first-year law students at schools throughout the country and asked about various aspects of their identity, such as socioeconomic status and educational background.

Our findings indicated that African-American and Hispanic students were significantly more likely than both white and Asian/Pacific Islander students to have qualified for free or reduced lunch programs in elementary or secondary school, had a parent or guardian who received public assistance when the student was a dependent minor, and received a Pell Grant during their undergraduate studies – all of which are race-neutral factors that schools could consider in admissions decisions.

How admissions could change

Based on the sample of participants in our study, it’s clear that privilege did not catapult all students of color to law school. Many of them had to overcome the structural inequalities of poverty, race and public education to embark on a legal career. Expanding opportunities for these and other minority students will benefit not only legal education and the legal profession, but also society more broadly.

Race-neutral admissions policies could help identify and create opportunities for these students.

To be clear, I do not advocate for the wholesale substitution of traditional race-conscious admissions measures with the factors we studied. Race-conscious policies continue to be the most effective means by which to create diverse student bodies.

However, we encourage law schools and other institutions of higher education to utilize these and other race-neutral admissions factors as a means of complying with the Supreme Court’s affirmative action mandates and testing the viability of policies that take such factors into account.

Doing so will help ensure that traditionally underrepresented students of color will continue to have access to colleges and universities that serve as gateways to career, financial and life opportunities.

Eboni Nelson receives funding from AccessLex Institute.