Three years after the Supreme Court told American universities to stop sorting applicants by race, the sorting hasn’t stopped. It just got a new address.
On Sept. 16, Students for Fair Admissions filed a comment letter with the Treasury Department and the IRS, warning that “geographic location,” a factor Treasury listed as an acceptable race-neutral criterion in its proposed rule on tax-exempt private schools, has become the preferred hiding place for the discrimination the court outlawed in Students for Fair Admissions v. Harvard. I’ve spent decades advising fiduciaries on the gap between what a policy says on paper and what it actually does. This is a case study in that gap.
Here’s the mechanism, and it isn’t subtle once you see it. A student’s home address maps to a census tract. The census tract maps to a school district, a median income, a housing stock, and, in an awful lot of American neighborhoods, a racial composition that hasn’t moved much since the last century. Feed an applicant’s zip code into an admissions algorithm, and you’ve built a race classifier that never has to say the word race. The College Board figured this out years ago with a tool called Landscape, an “adversity score” built from median family income, educational attainment, single-parent households, and neighborhood crime rates. Researchers who studied the tool found it nudged admissions decisions toward applicants from disadvantaged schools, and analysts have since tied it to shifts in campus racial composition at schools like Yale in the first cycles after the Harvard ruling. The College Board quietly retired the product in 2025 after SFFA started asking pointed questions about exactly that correlation. Nobody kills a moneymaker that’s perfectly legal.
The public sector picked up where Landscape left off. In Montgomery County, Maryland, school officials swapped a test-based magnet admissions process for one weighing an applicant’s home and neighborhood, after being briefed in advance on exactly how the switch would change the racial makeup of the incoming class. That case now sits at the Supreme Court. The justices, to their credit, saw this coming. In the Harvard opinion, they wrote that “what cannot be done directly cannot be done indirectly,” and that schools “may not simply establish through application essays or other means the regime we hold unlawful today.” A zip code is just a longer essay.
None of this means geography is inherently suspect. Family income, first-generation status, military family background, individual hardship: these are legitimate, race-neutral ways to find kids who’ve had a harder road, and I’d defend any school’s right to use them. My own path ran through a Marine Corps officer program, and a non-Ivy League co-op school, not a legacy pipeline, and I have no quarrel with institutions looking for the kid working two jobs and still acing calculus. The problem isn’t that geography exists as a factor. The problem is when a school selects, weights, or calibrates that factor because it correlates with race, then measures its own success by the racial makeup it produces. That’s the old redlining map with a new legal memo stapled to it.
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The court’s ruling was clear enough. What’s missing is enforcement with teeth. Right now, an institution caught running a race-proxy scheme risks, at worst, a strongly worded finding and a promise to do better. That’s not a deterrent; it’s a cost of doing business, no different than a compliance fine a hedge fund writes off before lunch. If Treasury and the IRS want this rule to mean something, the final language should state plainly that a facially neutral criterion adopted to produce a racial result is discrimination under section 501(c)(3), regardless of what it’s called, and that evidence that a school calibrated a geographic variable against racial data is proof of intent. Beyond the regulation, Congress and state legislatures should attach real teeth, stiffer penalties, and civil damages against institutions that knowingly build these workarounds after the court has already spoken. Discrimination doesn’t become lawful because you launder it through a mailing address, and a school that got the memo and routed around it anyway isn’t confused. It’s defiant, and defiance should cost something.
Aristotle held that justice means treating equal cases equally. A zip code tells you nothing about an applicant’s character, work ethic, or mind. It tells you where his parents could afford to live. An admissions system that treats an address as a stand-in for identity isn’t progress. It’s the same discrimination the civil rights movement fought, now wearing a spreadsheet instead of a sign. Close the loophole, or the ruling everyone celebrated in 2023 will turn out to have been mostly decorative.
Jay Rogers is a financial professional with more than 30 years of experience in private equity, private credit, hedge funds, and wealth management. He has a Bachelor of Science in criminal justice from Northeastern University and has completed postgraduate studies at UCLA, the University of Pennsylvania, and Harvard. He writes about issues in finance, constitutional law, national security, human nature, and public policy.