After SFFA v. Harvard, Universities Must Hold the Line

by | Aug 10, 2023

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About Jonathan Feingold

Boston University School of Law Professor Jonathan Feingold’s scholarship explores the relationship between racism, law, and the mind sciences. Professor Feingold co-authored an amicus brief on behalf of race-conscious admissions at Harvard and UNC, and his work has been cited in US Supreme Court amicus briefs defending affirmative action.

In Students for Fair Admissions v. Harvard (SFFA), the Supreme Court further limited a university’s right to consider race during admissions. This follows decades of caselaw restricting voluntary race-based measures to remedy racial inequality. Writing for the majority, Justice Roberts deployed a centuries-long discourse that reframes civil rights remedies as a threat to civil rights. The upshot is unmistakable. Roberts made it harder for universities to desegregate historically white campuses; promote a more individualized, equitable and “meritocratic” process; and cultivate equal learning environments for all. This ruling impedes the project of multi-racial democracy. But a distinct danger looms: institutional over-correction. To guard against unnecessary self-censorship, advocates must not over-state SFFA’s impact. This requires clarifying the decision’s surprisingly narrow scope.

To aid that effort, I identify several limitations below.

SFFA applies to admissions decisions only. Roberts highlighted that the underlying “cases involve whether a university may make admissions decisions that turn on an applicant’s race.” (emphasis added). This language siloes SFFA from other institutional policies—such as financial aid or recruitment—that might also consider a student’s racial identity.

Universities may consider personal experiences with race and racism. Roberts emphasized that “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.” This language reinforces what should be non-controversial: even if racial classifications are suspect, universities have wide latitude to consider an applicant’s personal experiences—whether relating to race, racism, or any other social phenomenon.

Universities may employ “race-blind” criteria to promote racial diversity. Roberts determined that neither Harvard nor UNC articulated a compelling interest that could meet the demands of strict scrutiny. But he also characterized their stated goals as “commendable.” This characterization should invite universities to redouble diversity-related efforts—even if through “race-neutral alternatives.”

The ruling exempts institutions with “distinct interests” in racial diversity. Roberts explicitly exempted military academies “in light of [their] potentially distinct interests.” Nothing inherently limits this reasoning to the military. Medical schools and law schools, for example, also possess “distinct interest” in racial diversity that the litigation did not address.

Universities may know the racial identity of individual applicants. SFFA does not prohibit universities from collecting or analyzing racial demographic information. In fact, that information is often critical to limit practices that reward inherited racial advantage.

Universities may talk about race and proudly proclaim their equality-oriented values. We often hear that universities should not pick sides. There is some truth to this. When a public university regulates others’ speech, the First Amendment often demands some degree of neutrality. But when a university speaks, there is no neutrality requirement. First Amendment scholar Steven Calabresi explains that “universities . . . could not even function if they did not choose to praise some viewpoints and criticize others. The praising of some things and the disapproving of others is basically at the core of what education itself is all about.” In a moment defined by rising attacks on people of color, LGBTQ+ people, and religious minorities, institutional counter-speech is as important as ever.

Universities must provide a learning environment free from racial harassment. Title VI of the Civil Rights Act of 1964 mandates that universities take affirmative steps to prevent racially hostile environments. Failure to do so violates students’ civil rights and threatens federal funding. To satisfy Title VI obligations, universities should monitor interpersonal and environmental dynamics that shape the racial climate on campus. This includes attending to the demographic composition of students, faculty, and leadership. When numerically underrepresented, students from negatively stereotyped groups face a heightened threat of racial harassment, stereotype threat, and other environmental forces that can undermine their right to equal university membership.

Universities must avoid unjustifiable racial disparities. Title VI’s implementing regulations prohibit unjustifiable disparate impacts. This mandate implicates over-reliance on ostensibly “race-blind” criteria that harm students of color—e.g., standardized tests and legacy preferences. The Boston-based Lawyers for Civil Rights recently filed a complaint claiming that Harvard’s legacy preferences, which favor wealthy white applicants, on this precise basis.

To repeat, SFFA was bad enough. But universities need not further the work of a runaway court by over-correcting or self-censoring. Hold the line.

Want to learn more?

Read: (Un)Learning from the US Supreme Court’s Affirmative Action Judgement: A South African Perspective

Read: The United States Supreme Court Puts an End to the Consideration of Race in University Admissions and Potentially Increases Racial Trauma for Applicants

Read: ‘White Backlash’ Against Affirmative Action in the United States and South African Courts

Read: How the Harvard Affirmative Action Case Became a ‘Battle of Economists’

Listen: Racial Hierarchy and Role of Whiteness (with Savala Trepczynski)

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