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Excerpted from Poverty & Race, Volume 32, No.2 (April – July 2023)
David G. Hinojosa
Ahead of the U.S. Supreme Court’s recent decision in Students for Fair Admissions (SFFA) v. Harvard and SFFA v. UNC (2023), there was great trepidation among the civil rights community and others on how far the ruling could extend beyond race-conscious admissions. SFFA and its amici had pressed the Court for an “extreme colorblind” interpretation of the Equal Protection Clause and Title VI of the Civil Rights Act of 1964 that, essentially, could have barred not only race- conscious admissions but also “race-neutral” programs that help integrate college and K-12 schools. While the majority opinion did not overrule Grutter v. Bollinger (2003), its opinion interprets the Equal Protection Clause in such an unjust manner that greatly limits race-conscious admissions. (For purposes of this article, and to avoid any confusion, “race-conscious admissions” refers to those admission policies that consider the race of individual students, while “race-neutral” programs are those that may result in greater diversity, but do not directly consider the race of individual students to achieve those goals.)
This essay briefly discusses the decision but also highlights how perhaps the lone saving grace of the decision was that it was not quite as extreme as some predicted. The ruling does not implicate or prohibit race-neutral measures enacted by universities, much less K-12 schools, that help ensure greater diversity in their classrooms and campuses. But the anti-civil rights opposition will not rest and will attempt to leverage whatever it can from the decision to challenge even race-neutral plans in secondary education. It will be incumbent upon us to ensure the opposition does not further undermine equal educational opportunities for all.
Brief background on the cases
SFFA filed its lawsuits against Harvard and UNC in 2014, the nation’s oldest private and public universities, respectively. While SFFA claimed that the universities’ admissions programs failed to satisfy strict scrutiny, SFFA’s central claim asked the Court to overturn Grutter v. Bollinger. In Grutter, the Court’s 5-4 majority opinion—authored by Justice O’Connor in 2003—held that the University of Michigan Law School’s holistic admissions program—where race was considered flexibly and only on an individual basis for underrepresented groups including African Americans, Hispanics, and Native Americans—was narrowly tailored to achieve the law school’s compelling interest in the educational benefits that flow from a diverse student body. These educational benefits included: increasing cross-racial relationships and understanding, breaking down stereotypes and racial isolation, improving academic performance, and exposing students to diverse perspectives and viewpoints. The decision essentially affirmed Justice Powell’s opinion in University of California at Davis v. Bakke decided twenty-five years earlier.
SFFA now challenged that precedent. Harvard was tried in 2018 in a three-week trial. The district court concluded in 2019 that Harvard’s program satisfied strict scrutiny by not engaging in racial balancing, not considering race as more than a plus factor, adequately weighing the availability of race-neutral alternatives, and not intentionally discriminating against Asian American applicants. Because the lower court was required to abide by Grutter, the district court dismissed SFFA’s claim to overturn Grutter. On appeal, the First Circuit affirmed the decision.
UNC was tried over two weeks in 2020. In 2021, the district court held that UNC’s plan passed constitutional muster by not considering race as more than a plus factor and by sufficiently considering race-neutral alternatives. (SFFA did not claim that UNC had engaged in racial balancing nor that the university had intentionally discriminated against Asian American students.) Like Harvard, the court dismissed SFFA’s claim seeking to overturn Grutter. The Supreme Court granted SFFA’s petition for certiorari over the objections of Harvard, UNC, and the student respondents represented by the Lawyers’ Committee for Civil Rights Under Law in the UNC case. Oral argument was held on October 31, 2022.
On June 29, 2023, the Supreme Court issued its decision in the Harvard and UNC cases, combining its ruling into one opinion. Despite the headlines of most news outlets proclaiming the death of affirmative action, the majority opinion did not directly overrule Grutter. Instead, in striking down the lawfulness of Harvard and UNC’s race-conscious programs, the 6-3 majority opinion authored by Chief Justice Roberts severely undermined race-conscious admissions by tightening the Grutter standards. In doing so, the Court first meandered through a narrow, misguided historical overview of the Fourteenth Amendment, suggesting that the Equal Protection Clause was enacted to ensure colorblindness and authorized racial classifications only under narrow circumstances that could survive strict scrutiny, such as race-based remedial plans and plans that avoid imminent and serious risks to safety in prisons.
The Court then reinterpreted strict scrutiny under Grutter, essentially moving the goalposts back and making it more difficult for universities’ race-conscious programs to meet the demands. The Court did this by, for example, suggesting that diversity goals such as preparing graduates for a pluralistic society and breaking down stereotypes were too imprecise for measurement under strict scrutiny—despite similar arguments that failed to persuade a majority in Grutter. Under its revised analysis, the Court held that neither Harvard nor UNC’s admissions programs satisfied strict scrutiny. First, the Court held that both programs lacked sufficiently concrete and measurable objectives in their diversity interests to allow for meaningful judicial review. In addition, despite a robust record of student and expert testimony to the contrary, the Court found that by considering race in admissions, universities seemingly make decisions based on racial stereotypes by suggesting students of the same race share the same viewpoints and such practices harm people based on their race. Finally, the Court criticized Harvard and UNC for failing to present a logical endpoint to their respective race-conscious programs and for intending to consider race well past the 25-year prediction in Grutter.
In two stinging dissents, Justices Sotomayor and Jackson chastised the majority for retreating on the Fourteenth Amendment’s dual promise of defeating Black subjugation and expanding racial equality, as well as the majority’s abandonment of the trial courts’ findings in the record. Recounting the history of the Equal Protection Clause and several congressional race-conscious efforts enacted to bring greater equality to African Americans, Justice Sotomayor criticized the majority’s “colorblind” framework for “subvert[ing] the constitutional guarantee of equal protection by further entrenching racial inequality in education.” And in responding to the Court’s far-fetched notion that Brown v. Board of Education supports the restriction of race-conscious admissions, Justice Sotomayor noted that “race-conscious college admissions policies. . . have promoted Brown’s vision of a Nation with more inclusive schools.” Justice Jackson double-downed on the arguments, discussing at length the historical, systematic discrimination against Black Americans and how this horrid legacy of inequality permeates society today. Justice Jackson wrote that “[p]ermitting (not requiring) colleges like UNC to assess merit fully, without blinders on, plainly advances (not thwarts) the Fourteenth Amendment’s core promise.”
Application to K-12 school admissions
For all that is wrong with the majority opinion in protecting white privilege and crushing equal protection jurisprudence, the Court did limit its opinion to only circumscribing universities’ race-based admissions programs. Many spectators predicted that the Court would issue a ruling that would ban all considerations of race, including requiring students to censor their race in college applications and even proscribing race-neutral efforts intended to ensure greater racial and economic diversity in secondary and post-secondary schools. But the Court stopped short of such a ruling.
Chief Justice Roberts acknowledged that universities may consider racialized experiences, such as when an applicant discusses “how race affected his or her life, be it through discrimination, inspiration, or otherwise.” Justice Kavanaugh noted that narrow tailoring requires courts to determine whether race-neutral alternatives could adequately achieve the governmental interest before pursuing race-conscious policies. Even Justice Thomas, in his lone, radical concurrence expressed his approval of race-neutral policies that “achieve the same benefits of racial harmony and equality without any of the burdens and strife generated by affirmative action policies.” SFFA, itself, also argued in its merits brief in support of race-neutral plans including socioeconomic-based and grade point percentage plans.
For K-12 schools, the Supreme Court has previously acknowledged in Parents Involved (2007) that public school boards may pursue and “adopt general policies to encourage a diverse student body, one aspect of which is its racial composition.” Such measures may include “strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race.”
Despite SFFA’s own support for such race-neutral plans, some of its supporting amici – including Parents Defending Education and the Pacific Legal Foundation – attempted in vain to convince the Court to extend its opinion and bar race-neutral plans where the effect would be to increase diversity in secondary education. The amici criticized efforts to eliminate standardized tests for entry into specialized public schools that disparately denied admission to underserved students and Black and Brown students, percentage plans that allowed admission from a greater number of feeder schools, and recognition of language and socioeconomic characteristics to ensure greater diversity. But the majority opinion failed to even mention K-12 schools.
This is not to suggest that the opposition will not try to use the opinion to preserve majority-white schools at all costs. The attack on affirmative action admissions has always been merely a down payment on extremists’ broader anti-civil rights agenda. Just hours after the Supreme Court’s decision was released, SFFA Board Member Kenny Xu appeared on CNN professing his disapproval of race-neutral socioeconomic plans. And the opposition has filed a handful of cases challenging school districts’ race-neutral admissions plans at specialty schools in Fairfax, Virginia; New York City; Boston; and Montgomery County, Maryland. The admissions policies sought to remove or reduce the influence of artificial barriers like entrance exams that were impairing fair access to substantial numbers of underserved students. Although the allegations and claims differ between the cases, the plaintiffs allege that race-neutral plans that merely reflect upon racial demographics among other demographics including language and socioeconomic status are evidence of discriminatory intent against Asian Americans and/or should be subjected to strict scrutiny.
Fortunately, the cases have been wildly unsuccessful. In Coalition for TJ, the Fourth Circuit recently held that Fairfax County’s race-neutral policy should not be subjected to strict scrutiny since it did not rely on racial classifications, and instead approved the lawfulness of the plan under the less onerous rational basis standard after finding that the plaintiffs failed to prove intentional discrimination. Likewise, in the Boston Parent Coalition case, the district court held that Boston’s plan satisfied rational basis and did not intentionally discriminate against the plaintiffs. In Christa McAuliffe, the federal district court found the revised New York City specialized admissions plan did not disparately impact Asian American students. And the Association for Education Fairness case was similarly dismissed in Maryland. However, while the battles are won in K-12 thus far, the war against equal opportunity and racial justice will continue. The Pacific Legal Foundation, which is one of the extremist organizations representing the plaintiffs in some of these cases, has announced plans to seek review by the Supreme Court of the Fourth Circuit’s decision in Coalition for TJ. And appeals are ongoing in the other cases. But rest assured, the civil rights and educational communities will rise together to help ensure the Harvard/UNC decision is not used to further limit opportunities for students across different races and economic backgrounds to learn and live together.
Hinojosa, D. & Bonadies Torres, G. (2023). The Absurd Reach of a Colorblind Constitution. American University Law Review, 72, 1731.
David Hinojosa (email@example.com) is counsel with the Lawyers’ Committee for Civil Rights Under Law and represents a multiracial group of student and alumni intervenors. Opinions expressed by the author represent his own opinions and not that of the clients or the organization.