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The demographic data for Yale’s first class admitted post-affirmative may put a target on the school’s back for future lawsuits, legal experts told the News.

Some legal experts said that Yale’s demographics indicated an unlawful racial preference, while others said that the Supreme Court’s ruling contains ambiguities or that Yale’s demographic distributions in the newest class may just reflect the use of other admissions factors. On Tuesday, one anti-affirmative action group indicated they may seek legal action against the University for maintained diversity. 

In the Yale class of 2028, Black and Latine enrollment remained similar to previous years, while the share of Asian American students fell and white enrollment rose from the year prior. At peer institutions such as MIT, Amherst College and Brown University, the share of Asian American students increased for the class of 2028, and the share of Black and Latine students decreased. 

Princeton, however, saw demographic shifts similar to Yale’s.

Yale’s admissions office did not immediately respond to a request for comment. The office previously declined to comment on the demographic data for the class of 2028 beyond a Yale News press release. 

Unchanged demographics could raise eyebrows

In 2022, the legal advocacy group Students for Fair Admissions sued Harvard and the University of North Carolina at Chapel Hill and argued that the schools’ race-conscious admissions discriminated against Asian American and white applicants. The case was ultimately heard by the Supreme Court, which struck down affirmative action and argued that the practice violates the equal protection clause of the Fourteenth Amendment.

In a joint amicus brief that the University submitted to the Supreme Court, Yale argued that racial diversity would not be possible without directly considering race. Yet, Yale’s class of 2028 did not see a dramatic decrease in diversity as the University predicted it would.

The amicus brief stated that “no race-neutral alternative presently can fully replace race-conscious individualized and holistic review to obtain the diverse student body Amici have found essential to fulfilling their missions.”

Edward Blum, president of Students for Fair Admissions, the group which brought the affirmative action cases to the Supreme Court, told the News that given this argument, Yale’s “results are bewildering since Yale argued … that the racial composition of its incoming class is not possible without implementing the type of racial discrimination that the Supreme Court barred.”

On Tuesday, SFFA sent letters to Yale, Princeton and Duke – three schools which saw a decrease in the share of Asian American enrollment in the class of 2028 – questioning whether the schools complied with the Supreme Court’s decision. The letter expressed concern that the University did not comply with the Court’s decision since their results do not align with their amicus brief which argued that the share of Black and Latine enrollment would drop without the consideration of race in admissions.

“Please explain this discrepancy, including any new, substantial race-neutral alternatives that you adopted in response to Harvard,” the letter to Yale reads. “Without that information, SFFA will conclude that you are circumventing the Supreme Court’s decision. SFFA is prepared to enforce Harvard against you through litigation. You are now on notice. Preserve all potentially relevant documents and communications.”

In a Sept. 19 email to the News, a University spokesperson wrote that “Yale’s admissions practices fully comply with the law and the Supreme Court’s 2023 ruling.”

Richard Sander, a professor at UCLA School of Law, suggested that Yale may be deducing applicants’ races from their essays and from the demographics of their high schools and hometowns.

He said that the demographics of Yale’s freshman class would be impossible otherwise unless admissions offices are “inflating their numbers of minority students” through methods such as including international students and mixed-race students in the data counts.

International students are not counted in the racial demographics data released by Yale, according to Dean of Undergraduate Admissions Jeremiah Quinlan. 

Quinlan added that six percent of the class of 2028 did not report their race once admitted through an optional survey sent out by Yale. This unreported racial data could change the demographic breakdown of the class.

“What Yale is doing is either they’re reporting a very misleading number or they’re cheating in some way,” Sander wrote to the News. “If their race numbers really don’t change, I think that means that they’re looking for any evidence they can find that a student is African American or Black, and they’re admitting them under the same criteria they were before.”

Direct consideration of race as a criterion for admission would violate the Supreme Court’s ruling, but Deborah Hellman, a law professor at the University of Virginia School of Law, said that the court was not clear enough about exactly what constitutes consideration of race.

In the Court’s majority opinion, Chief Justice John Roberts wrote that universities could consider an applicant’s discussion of race “so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university.”

The fact that Yale maintained levels of diversity while other universities saw large changes “is traceable to the ambiguity in the court’s opinion in the first instance about what is permitted and what is not permitted,” Hellman said.

Since the ruling does not rule out the consideration of a student’s lived experiences, which may include their race-related experiences, it is “not at all clear” which admissions practices remain legal. Universities therefore may have interpreted the court’s ruling in different ways, Hellman said, so she’s “unsurprised that there’s variation” between universities.

Hellman said those differences could lead back to the courtroom: “The court’s going to have to hash out what’s permissible and what’s impermissible.”

Several lawyers told the News that Yale may face lawsuits not because the University has broken the law but instead because there are litigious groups intent on minimizing the importance of diversity in college admissions.

“Even if a university is fully complying with the law, they may be vulnerable to lawsuits if they have high levels of racial diversity in their student body simply because the groups that challenged affirmative action have said that they will bring these types of suits,” Pauline Kim, a law professor at Washington University in St. Louis, wrote to the News. 

Richard Ford, a professor at Stanford Law School, noted that there will be continued threats or the possibility of litigation from activist groups who are unhappy with the lack of large changes in admissions statistics and who “will not be satisfied as long as any significant number of Black and Latino students are present on selective university campuses.”

Ford also wrote that he doesn’t think it is “feasible” to try to satisfy all activists; instead, he insists “Yale should be prepared to defend its practices.”

New Haven civil rights attorney Alex Taubes LAW ’15 told the News that Yale will have to be more careful and strategic going forward given the legal constraints. But, Taubes said, “a decline in racial diversity … should not be the inevitable result of the rulings.”

Taubes believes that the nature of Yale’s challenges over diversity may depend on the 2024 election. In 2020, under the Trump Administration, the Department of Education investigated Yale’s use of race in admissions. The investigation ended in 2021 after President Biden took office. 

Other factors could explain maintained diversity

Other factors, which do not necessarily indicate illegal or confusing admissions practices, could lead to a stable racial diversity post-affirmative action. 

Kim believes that even after the ruling, it is still possible for a university to admit a racially diverse class by adjusting its admissions policies to not make race “an automatic tip.” 

For example, college offices can conduct more concentrated outreach to schools predominantly composed of students of color. 

“So long as universities are doing holistic review rather than strictly admitting based on rank ordered numerical test scores, a wide variety of outcomes in terms of demographic distributions are possible,” Kim wrote.

Burgwell Howard, associate vice president for Student Life & dean of Student Engagement, told the News that Yale made “extra outreach efforts” last year and visited schools where before it had never had a presence. 

Ford wrote to the News that before the Supreme Court ruling, affirmative action was a proxy for considering how race affected opportunities and contributed to the perspective of applicants. Now, he added, universities have to look at the specific ways race affects an individual applicant.

Ford agreed that through race-neutral means, universities can achieve a level of diversity comparable to what affirmative action offered. Specifically, he recommended universities reduce their reliance on other policies that have a disparate racial impact, such as grades, test scores, legacy and donor preferences, and regional or athletic preferences.

Jonathan Feingold, a law professor at Boston University School of Law, also suggested schools reduce their reliance on criteria that inflate the credentials of white students and increase their reliance on other criteria that “help them identify students with promise and potential but do not function as a white racial preference.”

But questions still linger about the preferences universities took into account for the class of 2028.

“Yale should be more transparent as to how it has adapted to the Supreme Court affirmative action ruling,” William Jacobson, a Cornell Law School professor, wrote. “Only once that process is known could I opine on whether Yale has opened itself up to suit.” 

The Office of Undergraduate Admissions is located at 38 Hillhouse Ave.

Adam Walker contributed reporting.

Update, Sept. 19: This article has been updated with information on the letter SFFA sent to Yale, Duke and Princeton on Tuesday.