Will the Columbia and Brown Agreements Affect Student Body Diversity?

In addition to agreeing to fork over, respectively, $200 million and $50 million, Columbia University and Brown University made a number of other commitments in their resolution agreements with the federal government. In earlier essays (here and here), I discussed the anti-trans provisions and some of the other provisions of those agreements. Today's essay will focus on the commitments regarding student admissions. Here's the key provision, which is identical in each  agreement:

[Columbia/Brown] shall maintain merit-based admissions policies. [Columbia/Brown] may not, by any means, unlawfully preference applicants based on race, color, or national origin in admissions throughout its programs. No proxy for racial admission will be implemented or maintained. [Columbia/Brown] may not use personal statements, diversity narratives, or any applicant reference to racial identity as a means to introduce or justify discrimination.

Why did Columbia and Brown agree to these provisions? It's tempting to say that they had no choice. Perhaps the government insisted on their inclusion. But that's not a fully satisfying answer. There are some important differences between the Columbia and Brown agreements in other respects, indicating that they were the result of considerable bargaining. I suppose it's possible that any change to the foregoing language would have been a dealbreaker for the government, and so there was no negotiation over it permitted for either university.

However, there is another, more straightforward reason why both Columbia and Brown would have agreed to the language: it doesn't add anything to their pre-existing legal obligations under Students for Fair Admissions (SFFA) v. Harvard.

Readers who are intimately familiar with SFFA v. Harvard might be wondering about the caveat paragraph in the majority opinion of Chief Justice Roberts. There he wrote:

[A]s all parties agree, 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.  But . . . universities may not simply establish through application essays or other means the regime we hold unlawful today.   . . . A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race.

Nothing in the language of the Columbia/Brown resolution agreements departs from those principles. The resolution agreements bar the universities from using personal essays, diversity statements, and the like "as a means" to surreptitiously grant an admissions boost based on race. The agreements do not bar the universities from using those essays or statements in the way that the caveat paragraph would allow: to show how an applicant's experience of race, as distinct from race itself, affected the applicant's life.

The problem, however, is that, as I explained in an article in the Texas Law Review last year, a college or university admissions office that seeks experience-of-race essays from applicants will have difficulty defending against charges that it is doing so as a means of surreptitiously practicing unlawful race-based affirmative action even if that is not what it is doing. Why? Because, on average, minority applicants' experience of race--whether highlighted to show obstacles overcome, inspiration, or for some other purpose--will be more profound than the experience of race of non-minority applicants. Here's how I put the point in that article:

[I]n a society in which race matters, applicants of color will typically have had more and deeper experiences involving race. To be sure, applicants of all races will have had some experience of race. However (and at the risk of stereotyping), a cliché-filled admissions essay by an upper-middle-class white applicant describing the summer they spent as a volunteer aid worker in a developing country (e.g., “what these people who had so few material goods taught me about our shared humanity was much more valuable than the labor I performed”) will be legitimately less impressive than the essay of an applicant of color describing the impact of systemic racism on their entire life. Consequently, disadvantaged minority applicants will, on average, receive more of a boost from the experience-of-race essay than will other applicants. Yet, viewed after the fact, that statistical benefit will be difficult to distinguish—at least without substantial discovery and cross-examination—from an illicit counting of race qua race. Even if a lawsuit against the university by SFFA or like-minded groups would ultimately fail, it would survive a motion to dismiss and probably survive a motion for summary judgment.

And yet, an analysis by Professor Sonja Starr recently published in the Indiana Law Journal found that "diversity, identity, and adversity-focused essay prompts are prevalent and increasing in frequency." She also found "that the large majority of students of color as well as nearly half of white students do discuss their race in their college essays." Professor Starr's data pre-date the second Trump administration but her article includes analysis of practices post-SFFA.

I was curious whether Columbia and Brown are among the colleges that ask applicants about their "experience of race." Columbia does not specifically ask in so many words, but any applicants who wish to discuss their experience of race can easily do so in response to any or all of Columbia-specific prompts 2, 3, and 4:

2. Tell us about an aspect of your life so far or your lived experience that is important to you, and describe how it has shaped the way you would learn from and contribute to Columbia's multidimensional and collaborative environment. (150 words or fewer)

3. At Columbia, students representing a wide range of perspectives are invited to live and learn together. In such a community, questions and debates naturally arise. Please describe a time when you did not agree with someone and discuss how you engaged with them and what you took away from the interaction. (150 words or fewer)

4. In college/university, students are often challenged in ways that they could not anticipate. Please describe a situation in which you have navigated through adversity and discuss how you changed as a result. (150 words or fewer)

Columbia admissions officers will then evaluate applications "holistically." Notably, those are Columbia's questions updated July 31, 2025--i.e., after the settlement agreement. That timing indicates that Columbia's admissions office--almost certainly acting with advice of university counsel--takes the view that its agreement with the Trump administration does not disallow any admissions practices it was previously undertaking to take advantage of the SFFA experience-of-race disclaimer.

Likewise, the Brown-specific questions include this one:

Students entering Brown often find that making their home on College Hill naturally invites reflection on where they came from. Share how an aspect of your growing up has inspired or challenged you, and what unique contributions this might allow you to make to the Brown community. (200-250 words)

The words "inspired" or "challenged" seem tailor-made to comply with the disclaimer paragraph of SFFA, as does the apparently assiduous avoidance of the use of a specific mention of race in the prompts provided by both Columbia and Brown.

The Brown page doesn't indicate when it was last updated, nor does the source code (so far as I could tell given my amateurish abilities with HTML) but I found last year's application using the Wayback Machine, and it asked the same question. Given the recency of the Brown agreement, it's possible that Brown's admissions office will be more cautious than Columbia's and rework the application, but I doubt it. As I've explained, there's nothing in those agreements that imposes stricter requirements than SFFA.

Admittedly, the agreements into which Columbia and Brown entered require the production of data that could be used to purport to show that the universities are using the essay answers impermissibly, but the Department of Education could have obtained such data without the agreements. Columbia (but not Brown) agreed to a third-party monitor who might find a violation of SFFA where the courts might not. But to do so would require a very tendentious reading of the agreement, and if the third-party monitor is going to take aggressive measures against Columbia with respect to admissions, the university will also have other, bigger problems with the monitor.

The bottom line is that both the agreements themselves and the universities' behavior indicate that the provisions governing admissions do not limit their ability to promote racial diversity in their student bodies in any way that goes beyond the limits already imposed by the Supreme Court in SFFA. I'll call that a small battle won in a war that the academy is losing overall.