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July 26, 2023+Harry Blain
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The Irrelevance of the Supreme Court’s Affirmative Action Decision (OPINION)

The Supreme Court’s recent decision in Students for Fair Admissions v. President and Fellows of Harvard College, which effectively banned the use of racial classifications in college admissions, has attracted significant attention and commentary. Rightly so. The consideration of race in college admissions has long been a subject of contentious public and judicial debate, and the highest court in the land has now reversed its prior willingness to defer to the judgment of universities.

On the other hand, the centrality of affirmative action to the nation’s “culture wars” has inflated the significance of the SFFA v. Harvard case in three main respects. First, the case does not ban affirmative action; only a particular form of it. Second, the case only affects the small subset of the undergraduate population that applies for elite colleges in states where the use of racial classifications in admissions is not already banned. Third, the attention given to the case has overshadowed several other just as consequential but less ideologically divisive cases that the Court decided in its 2022-23 term.

Affirmative Action Is Still Allowed

Almost every news headline – not to mention every unsolicited public statement by a college administrator – after the Supreme Court’s SFFA v. Harvard decision announced that the Court had banned affirmative action in college admissions. If affirmative action is nothing more than the use of racial classifications – the boxes that applicants check identifying their race – to boost racial diversity on campus, then affirmative action is, indeed, dead.

Historically, however, affirmative action has meant much more than this: above all, public and private institutions taking real, conscious, and often difficult measures to roll back this country’s ugly history of racism. For universities, this has involved and can still involve financial support, smoother transfer arrangements with community colleges, “percent plans” reaching the top tier of students in state school districts, case-by-case consideration of how applicants have experienced racism, and reconsideration of standardized test scores. The Supreme Court, for now, is happy with all of these race-conscious initiatives; the problem comes when universities use racial data in the applicant pool to achieve some form of racial balancing.

To be sure, Harvard and the University of North Carolina (UNC) (which was sued in a separate case that the Court consolidated with SFFA v. Harvard) argued that they are already promoting diversity through a wide range of policies and that racial classifications play a relatively marginal role in their admissions decisions. But if racial classifications really were only one small part of broader affirmative action programs, then the elimination of these classifications should not result in the end of affirmative action. Now, we will see whether Harvard, UNC, and others were ever really committed to diversity or to only one – relatively easy – method of pursuing it.

"Now, we will see whether Harvard, UNC, and others were ever really committed to diversity or to only one – relatively easy – method of pursuing it."

The Real-Life Impact

Importantly, to the extent that SFFA v. Harvard will reshape higher education, it will only affect a small portion of universities across the country. Nine states already prohibit the use of racial classifications in public college admissions, including the largest, California. Most undergraduate students in the United States do not attend elite schools like Harvard and UNC, but low-cost state schools that naturally generate diversity because they are inexpensive, allow students to commute from home, and do not rely so much on standardized test scores.

A fair objection to this point – made repeatedly in affirmative action lawsuits – is that schools like Harvard and UNC provide a pipeline for the nation’s future leaders. If such elite universities cannot use racial classifications to diversify their student body, then that will create a country run by a racially homogenous clique.

While this is a fair objection, it is not a totally accurate one. For starters, Historically Black Colleges and Universities (HBCUs) are better drivers of black social mobility than historically white institutions like Harvard and UNC. As the President of the United States noted in September 2022, HBCUs “have produced 40 percent of all Black engineers and 50 percent of all Black lawyers in America. Seventy percent of Black doctors in our country attended an HBCU, and 80 percent of Black judges are alumni of these schools.” In general, racial diversity in high-income professions has been driven by HBCUs and low-cost public colleges; not the kinds of schools that will be affected by SFFA v. Harvard.

Overshadowing Other Impactful Cases

SFFA v. Harvard, as well as the Supreme Court’s decisions upholding the First Amendment right of a wedding website designer to refuse to create custom-made content endorsing gay marriage, and voiding the Biden Administration’s attempts to cancel student debt, have dominated the news cycle since the end of the Court’s 2022-23 term. While these decisions were split – often vociferously – along the 6-3 “liberal-conservative” spectrum, several highly consequential decisions did not fall along ideological lines.

These included Moore v. Harper, which rejected the idea that state legislatures have plenary authority to regulate federal elections; Allen v. Milligan, preserving a core provision of the Voting Rights Act; Haaland v. Brackeen, upholding the constitutionality of the adoption preferences given to Native American tribes under the 1978 Indian Child Welfare Act; and two major First Amendment cases – involving the constitutionality of a federal statute criminalizing the “encouragement or inducement” of illegal immigration, and the tensions between anti-stalking laws and free speech. Given the volume and breathlessness of SFFA v. Harvard coverage, the average American could be forgiven for not even knowing that these cases existed.

Those of us who write and teach about constitutional law ought to put SFFA v. Harvard in this wider context – not to defend the Supreme Court but to ensure that we are not cheapening our understanding of it. More generally, we should be wary of exaggerating the significance of the SFFA case for universities, affirmative action, racial classifications, and the future of the American judiciary.


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