Affirmative Action Tested: The Constitutionality of “Landscape”

Authors

Eric James Seltzer

Document Type

Note

Abstract

(Excerpt)

In August 2019, the College Board announced it was launching a program providing higher education institutions with “context about students’ high schools and neighborhoods when making admissions decisions.” In August 2019, the College Board announced it was launching “Landscape,” a program providing higher education institutions with “context about students’ high schools and neighborhoods when making admissions decision.” Landscape collects and organizes data into three categories—basic high school data, such as school locale, test score comparison, and high school and neighborhood indicators—that offers insight into high schools and neighborhoods. Among these indicators are quintessential measures of socioeconomic status, including college attendance, household structure, median family income, housing stability, education levels, and crime rate. To provide admissions officials with “more consistent background information so they can fairly consider every student, no matter where they live and learn,” these six indicators are averaged and presented on a 1–100 scale for both a student’s high school and neighborhood. A higher score represents a “higher level of challenge related to educational opportunities and outcomes”; a lower score indicates less of a challenge in attaining academic success.

This Note addresses potential Fourteenth Amendment challenges to the new Landscape profile. Although the College Board’s efforts are laudable, Landscape raises several constitutional questions because of its socioeconomic classification system and similarity to past affirmative action programs that were challenged on Equal Protection grounds. Before turning to these issues, Part I provides a descriptive overview of Landscape and discusses the program’s origin, evolution, and methodology. Part I concludes by summarizing the prevailing criticisms of Landscape’s rating system, which some have called an “adversity score.”

Part II then offers a snapshot of modern Equal Protection jurisprudence, which follows the oft-cited three-tiered framework of strict scrutiny, intermediate scrutiny, and rational basis review. Thereafter, Part II surveys the development of affirmative action in higher education, beginning with the landmark Regents of the University of California v. Bakke decision. Notably, almost all affirmative action cases since Bakke have involved race and therefore have triggered strict scrutiny, including the recently-decided Fisher v. University of Texas at Austin case. However, several legal scholars suggest class-based affirmative action programs, which account for socioeconomic disadvantage, could instead receive rational basis review.

After building on the necessary factual and legal background in Parts I and II, Part III turns to the threshold requirement in any Fourteenth Amendment Equal Protection analysis, and assesses whether the College Board, a private not-for-profit organization, functions as a state actor because of its virtual monopoly over the college admissions process. This Note argues that, under the “entwinement test” established in Brentwood Academy v. Tennessee Secondary School Athletic Association, the College Board functions as a state actor because publicly-funded institutions have historically developed an “entangled” relationship with the College Board.

Part IV evaluates the constitutionality of Landscape under the Equal Protection Clause, and argues rational basis review is appropriate because Landscape uses indicators that depend heavily on socioeconomic classifications. Alternatively, if Landscape is framed in terms of geographic locale, courts would still apply rational basis review. Next, this Note contends that the College Board has a legitimate interest in providing schools with consistent data reflective of students’ socioeconomic upbringing because the Supreme Court of the United States previously held diversity in higher education is a compelling interest. Finally, despite criticism that Landscape is both underinclusive and overinclusive, this Note concludes that the program is rationally related to its proffered end.