In a landmark ruling, the Supreme Court held in Students for Fair Admissions v. Harvard (2023) that universities cannot discriminate on the basis of race in making admissions decisions. Writing for a 6-3 majority, Chief Justice John Roberts explained that the use of racially discriminatory preferences for applicants to public colleges and universities runs afoul of the Equal Protection Clause of the Fourteenth Amendment. Pursuant to Title VI of the Civil Rights Act, private universities that accept federal funding are also prohibited from discriminating on the basis of race. The core purpose of the Equal Protection Clause was to end government discrimination on the basis of race and, as Roberts put it, “[e]liminating racial discrimination means eliminating all of it.”
In a concurring opinion, Justice Clarence Thomas forcefully rejected the universities’ argument that this particular form of race discrimination is beneficial. He explained that time and again, proponents of racial discrimination—from proponents of the Black Codes to proponents of segregated schools—have defended their practices as “helpful” to racial minorities. “I would have thought that history had by now taught a greater humility when attempting to distinguish good from harmful uses of racial criteria,” Thomas wrote. So-called “affirmative action” policies, Thomas continued, “sort at least some blacks and Hispanics into environments where they are less likely to succeed” and “stamp” others with a “badge of inferiority.”
Relying on David Bernstein’s scholarship, Justice Neil Gorsuch’s separate opinion emphasized the arbitrariness of the universities’ racial categories, which “rest[ed] on incoherent stereotypes.” Their “Hispanic” category, for example, would cover a white American whose ancestral language just happens to be Spanish. “Meanwhile, ‘Black or African American’ covers everyone from a descendant of enslaved persons who grew up poor in the rural South, to a first-generation child of wealthy Nigerian immigrants, to a Black-identifying applicant with multiracial ancestry whose family lives in a typical American suburb.” And the “White” category “sweeps in anyone from Europe, Asia west of India, and North Africa,” including, for example, an Iranian refugee.
Notwithstanding the strong arguments made by the justices in the majority—and the fact that Americans approve of the decision by a wide margin—we can expect massive resistance to the ruling by many universities, similar to the reaction of many states to Brown v. Board of Education (1954). After Brown, Virginia Senator Harry Byrd called upon states to resist the decision: “If we can organize the Southern States for massive resistance to this order I think that in time the rest of the country will realize that racial integration is not going to be accepted in the South.” The subsequent struggle to enforce Brown led to follow-on litigation, such as Brown v. Board of Education (1955) (“Brown II”) and Cooper v. Aaron (1958), and President Eisenhower famously sending federal troops to assist in the integration of schools in Little Rock, Arkansas.
The reaction of many universities to Students for Fair Admissions echoes the resistance to Brown. Just a few hours after the decision was released, I received an email from Dean Hari Osofsky of my alma mater, Northwestern University School of Law, stating that she was “saddened and angered” by the decision. She emphasized that the school “remains fully committed to advancing diversity, equity, and inclusion,” which are “core values” of the school, as is exposing future lawyers to “diverse viewpoints.” She explained that the school has been “working closely with the University and its working group in preparation for the decision” and in the “coming days, we will collaborate … to develop a concrete path forward.” And she reiterated that “[w]e are committed to advancing initiatives allowed by law to further develop outreach, pipelines and partnerships and to support greater access to legal education.”
While Osofsky gave lip service to the idea of complying with the law, the overall thrust of the email is that the school will do everything it can to continue favoring Black and Hispanic applicants and students, notwithstanding the Supreme Court’s decision. No doubt the alumni of many other schools received similar screeds.
So what next? Some universities, latching onto Chief Justice Roberts’ statement 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,” might cloak their consideration of race in the guise of “adversity statements” and the like. Others might just quietly persist in discriminating on the basis of race without admitting it. Recently, footage of Dean Erwin Chemerinsky of Berkley Law was discovered during which he admitted that—despite California’s prohibition of affirmative action—the Berkley hiring committee discriminated on the basis of race: “You can think it, you can vote it, but our discussions are not privileged, so don’t ever articulate that that’s what you’re doing.”
We can also expect litigants, like Students for Fair Admissions, to challenge the continued racial discrimination of universities, at least when there is enough evidence that it is occurring. In other words, Chief Justice Roberts has made his decision, and now it’s time for him to enforce it.