By Nathalie Beauchamps
Among the panoply of decisions that the Supreme Court has overturned or narrowed over the past few years, Students for Fair Admissions v. Harvard stands out. In the immediate aftermath of the decision, the burning question for those interested in or impacted by affirmative action was: what next? The lasting effects of this decision are worth discussing, not only on higher education admissions, but on school integration efforts, employer DEI efforts, and government-led affirmative action programs. Furthermore, supporters of affirmative action should think hard about what the longer-term role of affirmative action should be for addressing what is really a broader issue of remedying the lasting effects of systemic racism.
The SFFA suit was brought by a nonprofit called Students for Fair Admissions (“SFFA”), led by Edward Blum. SFFA argued that the admissions processes at Harvard College and University of North Carolina violated Title VI of the Civil Rights Act of 1964 and the Fourteenth Amendment’s Equal Protection Clause by considering race as one of several factors. After applying a strict scrutiny test to the two university admissions programs, the Supreme Court agreed with SFFA. The Court conceded that maintaining diversity in higher education was a compelling state interest, reinforcing its prior holding in the landmark decision Grutter v. Bollinger. However, the Court did not agree that utilizing race as an explicit factor in admissions was narrowly tailored enough to pass constitutional muster. Strictly speaking, SFFA did not entirely overturn Grutter by banning outright the consideration of race in admissions—college admissions boards can still consider a student’s race if discussed in their admissions essays. Moreover, SFFA only legally applies within the higher education context: the plaintiffs sued under Title VI of the Civil Rights Act of 1964, which prohibits discrimination for institutions that receive federal funding. Thus, the direct legal impact of the decision is that any consideration of race as a discrete factor in college admissions is now unconstitutional.
SFFA’s impact was immediate: higher education admissions boards have scrambled to find another way to maintain diversity at their schools. The admissions board at Harvard College, for one, adjusted its application promptly. Instead of asking for one longer essay in which students may or may not talk about their race, Harvard now requires five shorter essays, one of which encourages students to discuss how their experiences will contribute to the diversity of the school. Time will tell whether modified approaches such as this will yield similar demographic outcomes in the years to come.
It is less clear, however, how SFFA has or will change the number of “diverse” students enrolled in higher education. Prior to SFFA, affirmative action was primarily utilized by smaller and selective colleges—institutions that have already turned to utilizing applicant essays to evaluate the race of applicants. After SFFA, it may be difficult for large state schools to take a similar approach of evaluating essays, due to the many more applicants per cycle they have to evaluate. While several states had already banned affirmative action in public schools before SFFA was decided, for those remaining, it is hard to tell what the future of diversity at these schools will look like. A report by Zachary Bleemer, written after passage of Proposition 209 (a California ballot proposition that banned affirmative action in California public schools) offers one clue for a potential outcome. The report, evaluating longitudinal data from 1994 to 2002, found that banning affirmative action in California led to underrepresented minorities ending up in “lower-quality” colleges and universities, a decreased STEM degree attainment for underrepresented minority students, and a five percent annual decline in underrepresented minority graduates’ earnings between their mid-twenties to mid-thirties. If other large schools now take the same approach as the University of California system did, data suggests that SFFA could indeed leave a dark legacy.
Higher education is certainly not the only sector impacted by SFFA. Private employers have wondered how the decision might impact their own processes that evaluate race. Because the plaintiffs in SFFA sued under Title VI of the Civil Rights Act of 1964, which prohibits discrimination for institutions that receive federal funding, to the extent that private entrepreneurs do not receive federal funds to play slot in casinos, they are safe from federal fiscal rescission. Nonetheless, private employers remain prohibited under Title VII from utilizing race as a factor in hiring. However, plaintiffs have begun arguing that certain DEI initiatives at private corporations, public corporations, and non-profits alike (e.g., diversity fellowship for intern applicants) violate the Civil Rights Act of 1866 which prohibits discrimination by any party in the making and enforcement of contracts. Just last summer, the American Alliance for Equal Rights (an organization led by SFFA founder Edward Blum), filed suit against Fearless Fund, a venture capital company run by and for women of color. The Alliance claimed that the Fearless Fund violated the Civil Rights Act by awarding grants to Black women-owned businesses. So far, the Eleventh Circuit has granted an injunction, halting Fearless from running its grant programs for the duration of the lawsuit. Companies have now noticeably begun adjusting their diversity programs to make them immune from similar suits (for example, some have made their diversity fellowships available to all applicants).
Educators have also wondered what SFFA might mean for school integration efforts. Notably, school districts do not have to change much of what they did before the SFFA decision due to prior case law. In Parents Involved in Community Schools v. Seattle School District No. 1, the Supreme Court declined to extend its reasoning in Grutter that diversity is a compelling interest for school districts to desegregate their schools. Instead, the Court argued that diversity in higher education is distinct because it is not focused solely on race, but rather on “all factors that may contribute to student body diversity.” The Court has also formally recognized an interest in remedying the effects of past intentional discrimination.[1] Per Justice Kennedy’s guidance in his concurrence in Parents Involved, school boards have been able to promote school integration by working at the “general” rather than the “individual” level, such as redrawing school districts, relocating schools, and admitting students based on zip code as a proxy for race. Nonetheless, the lawsuits have continued, even challenging race-neutral school districting and admissions initiatives. The First Circuit, for one, just recently found in favor of three Boston schools that switched from a test-in admissions policy to one that considers applicants’ home zip codes, finding that this system did not violate the Constitution. There is no guarantee, however, that the Supreme Court will remain friendly to similar schemes that utilize race-neutral factors as proxies for race.
While the government itself also maintains affirmative action programs, these programs will likely remain untouched for the near-term future. First, United States military academies utilize affirmative action. The SFFA Court made an explicit exception within a footnote for these programs, allowing military academies to continue implementing affirmative action programs while citing the “distinct interests” of these schools. Second, the federal government, via Executive Order 11246, requires federal contractors to abide by “affirmative action” requirements. These requirements are distinct from affirmative action in higher education because they set “placement goals” and encourage contractors to keep track of how many underrepresented minorities they employ; however, the government expressly forbids race to play a factor in hiring decisions or for contractors to utilize quotas to meet their goals.
The legacy of SFFA may be a moment for celebration for some, or a solemn reality for others. Regardless, while the status of affirmative action is in flux, it is more important than ever to reckon with the role affirmative action can or should play in the future to redress the impact of systemic racism.
If the legacy of SFFA turns out to look similar to the outcomes presented in Bleemer’s report on Proposition 209, litigators might consider prompting lower courts to re-evaluate their line of decisions that define an interest in remedying past intentional discrimination as compelling. The Supreme Court, in City of Richmond v. Croson, however, has set a high bar in this context, requiring an institution to demonstrate that it has itself intentionally discriminated against a group that purportedly benefits from its affirmative action program for there to be a compelling interest. Nonetheless, a goal of remedying historical injustices could still hold more weight in courts long term. When diversity itself is the impetus behind an affirmative action program, it is hard to justify why a student from one demographic should be “favored” over another. However, if affirmative action is positioned as part of a larger project to remedy historical injustices, this could present a more consistent moral justification for benefiting certain groups over others.
On the other hand, while affirmative action has been utilized to simply chip away at systemic injustices, it now finds itself on highly unstable ground. Consequently, this might lead litigators or advocates generally to question whether there is still any role for affirmative action within racial justice agendas. I believe there is—but within school desegregation efforts. A Brookings report argued recently that SFFA will likely not have a strong impact on college admissions, reasoning that Black and Latino students are overrepresented in two-year colleges where admissions are already not very competitive. This statistic, however, demonstrates a larger problem: racial educational disparities begin long before college. School districts in America remain highly segregated. And data shows that the achievement and earnings of Black students in the aftermath of Brown v. Board of Education improved significantly when compared to outcomes of these students before the landmark decision. Evidently, being in well-resourced schools at a young age can dictate one’s trajectory. Unfortunately, the days of court-ordered desegregation are largely behind us, and school districts hoping to find innovative ways to promote integration often receive large pushback from parents. This does not mean that we should give up combatting school segregation, which is alive and well seventy years after Brown—instead, this is an effort worth lobbying Congress for. In the wake of SFFA, school desegregation would likely do much more good than affirmative action in higher education ever could.
***
[1] See Freeman v. Pitts.