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

by | Jul 4, 2023

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About Atinuke Adediran

Atinuke (Tinu) Adediran is Associate Professor of Law at Fordham University School of Law. She is an expert on race and law, corporations, and social impact. She is the author of Disclosureland: How Companies Construct Their Public Image and Discount People of Color, under contract at Cambridge University Press.

On June 29, 2023, in a 6-3 decision by ideological lines, with a republican and conservative majority, the United States Supreme Court decided in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College that Harvard University and the University of North Carolina Chapel Hill (UNC) can no longer consider race in admitting students to their universities.

The case came about when in 2022, the Supreme Court granted review of a pair of lawsuits filed by “Students for Fair Admissions,” a conservative group seeking to end the use of race in university admission programs. The plaintiffs argued that Harvard’s race-conscious admissions program discriminated against Asian American applicants and violates Title VI of the Civil Rights Act, which bars entities that receive federal funding from discriminating on the basis of race. They also argued that UNC’s admissions process gives preference to Black, Hispanic, and Native American applicants in violation of Title VI and the 14th Amendment’s guarantee of equal protection, which prohibits racial discrimination by government entities.

Prior to this decision, Harvard, UNC and other colleges and universities across the country adhered to the decision in the 2003 decision in Grutter v. Bollinger, where the Court held that colleges and universities could consider race as one factor among several in making determinations of whom to admit to their universities with the goal being to assemble a diverse student body. But even in Grutter, the Court already noted that race-conscious programs should not exist permanently. Writing for the majority, Justice Sandra Day O’Connor expressed the expectation “that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

That day has now come five years earlier than Justice O’Connor predicted. Colleges and universities across the country must now go back to the drawing board to figure out how to remain committed to advancing racial diversity and opportunity for people of color within the boundaries of this explicitly colorblind legal regime, which Justice Jackson refers to as “colorblindness [] by legal fiat” in her dissenting opinion. The majority based its reasoning on the notion that the admissions systems at both universities use race as a stereotype or negative against Asians, have no expiration date, and are not objectively measurable by the Court.

To be sure, and as Justice Jackson mentions, “deeming race irrelevant in law does not make it so in life.” The Court’s majority cannot deny that racism exists and impacts the lives of people of color. But the Court’s conservative majority has chosen to put an end to measures that universities have adopted to address institutional racism that impacts social and economic advancement.

However, Chief Justice Roberts’s majority opinion leaves some room for universities to begin exploring how to continue to address racial inequality through educational opportunities. The majority states 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.”

Universities have already begun encouraging prospective applicants to write about how race has impacted their lives. While the admissions essay can appear to be a solution to the problem of continuing to address racial inequality in education, it also has some major costs for applicants who must now re-live past racial trauma in those essays. This is another form of people of color being expected to regurgitate past racial traumas for the sake of white enlightenment. In this case, applicants of color – specifically Black, Latino and Native Americans—must now share difficult experiences with admissions staff. Therefore, in addition to making it challenging for universities to continue their work of increasing opportunities for racial minorities to improve race-based gaps with respect to health, wealth, and well-being in the United States, the Court has potentially opened up young adults to more racial trauma.

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