The affirmative action door has closed, but some windows remain open

The United States Supreme Court recently held that race-based admission policies violated the Equal Protection clause of the United States Constitution. (Students For Fair Admissions, Inc. v. Harvard Coll. and Univ. of North Carolina (2023) 143 S. Ct. 2141 (SFFA).)

In response, the Departments of Justice and Education provided a joint Questions & Answer sheet, guiding colleges and universities in adapting to the Court’s ruling. The sheet, while not legally binding to either the Departments of Justice and Education or to the public, provides a useful analysis of the Departments’ interpretation of SFFA and how it applies to Title VI.

Chief Justice Roberts, writing for the majority, focused his analysis on the uniqueness of individuality above and beyond a person’s race. A “principal reason[ ] race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities.” (Ibid. at p. 2170, citing Rice v. Cayetano (2000) 528 U.S. 495, 517.) Individuals are not the product of their race. (Id. citing Miller v. Johnson (1995) 515 U.S. 900, 912.) The touchstone of an individual’s identity is not race, but “challenges bested, skills built, or lessons learned.” (See SFFA, supra, at p. 2175.)

As so, said the Chief Justice, universities are not prohibited from “considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” (Id. at p. 2175.) Thus, a “benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual – not on the basis of race.” (Id.)

Continuing this analysis, the Departments of Justice and Education provided two primary points of guidance: (1) permitted consideration of race in admissions; and (2) other steps to achieve a diverse student body.

Borrowing from the Court’s example (indeed, the majority opinion might be the better source of legal advice as to how to comply with the majority opinion), the Departments provided examples of permitted entrance questions or discussions. One example is the experience of a Black applicant, as the first Black violinist in their city’s youth orchestra. Another example is a discussion on “how learning to cook traditional Hmong dishes from her grandmother sparked [the applicant’s] passion for food and nurtured her sense of self by connecting her to past generations.”

This guidance fully aligns with the Court’s dicta and reasoning. An individual is unique for many reasons, including their connection to their racial history and the effect of that history on their individual identity. Thus, as long as the effect of race is viewed in consideration of the totality of the individual, the Constitution remains unmolested.

Snipping from Chief Justice Roberts’ opinion, the Departments also advised that institutions may continue to articulate missions and goals tied to student body diversity. Permitted strategies include “considering the full range of circumstances a student has faced in achieving their accomplishments, including financial means and broader socioeconomic status; information about the applicant’s neighborhood and high school; and experiences of adversity, including racial discrimination.”

Thus, schools may use data collected (in adherence with privacy and other laws) to maintain targeted outreach, recruitment, and pathway programs.

This guidance also borrows from Justice Lewis F. Powell, Jr., who wrote that schools are entitled to its own judgment in selecting its student body and thus have a compelling interest to obtain “educational benefits that flow from a racially diverse student body.” (Regents of Univ. of California v. Bakke (1978) 438 U.S. 265, 311-312, accord. SFFA, supra, at p. 2163; Grutter v. Bollinger (2003) 539 U.S. 306, 328 [“The Law School’s educational judgment that such diversity is essential to its educational mission is one to which we defer.”].) “A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a black student can usually bring something that a white person cannot offer.” (Bakke, supra, at p. 316.)

Thus, say the Departments, targeted “pathway programs” that allow institutions to “connect with a broad range of prospective students,” including a “robust pool of talented students from underrepresented groups,” are permitted. Institutions may identify race, geographic residency, financial means, socioeconomic status, family background, and parental education levels. Institutions may then give pathway program participants preference in its admissions process.

Also, institutions may partner with high schools or other programs to offer mentoring enhancing potential applicants’ academic exposure.

Institutions may also use the non-racial criteria, such as geographic locations or financial means, in determining allocation of resources to these programs.

Similarly, institutions may carefully evaluate their admissions policies to best determine holistic-based factors that faithfully reflect institutional values and commitments. Thus, the same way a school may prioritize legacy students, a school may also award more slots for first-generation students or students from underserved geographies, so long as the award is not racially motivated.

Finally, institutions may – and are encouraged to – provide resources to students on campus. Offices of diversity and cultural centers can foster a sense of belonging and support. They may even have a race-related theme – so long as the resources are open to all students regardless of race.

A final cautionary word.

“What cannot be done directly, cannot be done indirectly. The Constitution deals with substance, not shadows, and the prohibition against racial discrimination is levelled at the thing, not the name.” (SFFA, supra, at p. 2175, citing Cummings v. Missouri (1867) 71 U.S. 277.) Institutions should proceed accordingly.