ANALYSIS: The battle over affirmative action is just beginning

The following is the first of a two-part analysis examining colleges’ immediate responses to this summer’s Supreme Court decision against affirmative action in college admissions.

The Supreme Court ruled against affirmative action in college admissions in June, but the battle to put the ruling into practice is just beginning. 

The nation’s highest court issued two rulings in companion cases, Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina, which found that race-based affirmative action programs in college admissions are unconstitutional as well as in violation of the Civil Rights Act of 1964. However, universities and activist groups are intent on finding ways to maintain their diversity agenda, even if it means circumventing the law of the land. This campaign is likely to set up another legal fight over how this ruling is to be enforced. 

“Unwelcome and disappointing”: Universities react to the decision

The response to the ruling from higher education institutions was nothing short of bitter indignation. 

“This morning’s opinion is unwelcome and disappointing, but it is not unexpected,” Princeton University president Christopher L. Eisgruber wrote in a statement reacting to the ruling.

“Today, the US Supreme Court attempted to pull our nation backwards in the journey toward equity and civil rights with an egregious ruling that will have serious impacts on students and families seeking the American dream of opportunity through higher education,” State University of New York Chancellor John B. King Jr. said in a statement. 

“Although the U-M is not directly affected by the U.S. Supreme Court’s decision to significantly narrow how race can be considered in admissions policies, we are deeply disheartened by the court’s ruling,” the University of Michigan added. 

Indeed, a chorus of institutions across the country issued statements that expressed their “disappointment” and “disagreement” with the ruling. These institutions echoed similar refrains about each one’s commitment to diversity and inclusion and working to ensure a diverse student body within the bounds of the law. They noted that they had all devoted special working groups to understanding the law and building best practices for advancing diversity without affirmative action, which would provide campuses with updates in the future. And each one repeated similar platitudes about how the Supreme Court’s decision has not affected its core values: these schools would continue to build diverse communities drawing on a wide range of experiences and backgrounds, because diversity is essential to both the experience of campus life and effective research.

“Following the decision announced by the U.S. Supreme Court earlier today, we write to you to reaffirm the university’s commitment to diversity as an essential element of our commitment to excellence,” Tulane University President Michael A. Fitts wrote in a statement. “Tulane must be an equitable, diverse and inclusive community that welcomes and supports a wide array of students, faculty and staff. The transformative value derived from a diverse university community enriches, energizes and informs our research, discovery and teaching in ways that benefit everyone.”

“We know the best research and learning occurs on a campus that reflects our multicultural world, which in turn has the most positive impact on improving our society,” Fitts added,” Fitts added. “We will continue to welcome and support students, faculty and staff from the widest range of cultural and educational backgrounds.”

“Diversity, in all its forms, is critical to the educational experience, because students learn not just from their professors but from each other,” read a statement from the University of Virginia. “Our goal is to prepare students to lead in a complex and dynamic world, and one of the ways we achieve that goal is to offer them as many opportunities as possible to exchange ideas and perspectives with people with different backgrounds, experiences, and perspectives.”

But Harvard University’s statement was much more sinister, with a tongue-in-cheek admission that the University intended to exploit a loophole in the ruling:

“Today, the Supreme Court delivered its decision in Students for Fair Admissions v. President and Fellows of Harvard College,” Harvard wrote. “The Court held that Harvard College’s admissions system does not comply with the principles of the equal protection clause embodied in Title VI of the Civil Rights Act. The Court also ruled that colleges and universities may consider in admissions decisions ‘an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.’ We will certainly comply with the Court’s decision.”

The Loophole

In the majority opinion in SFFA v. UNC, Chief Justice John Roberts writes this line in the conclusion that appears to open the loophole Harvard intends to exploit:

At the same time, as all parties agree, 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.

Commentators on both the left and right zeroed in on this line, declaring that it was large enough to “drive a truck through” and pointing to Harvard’s statement as evidence that the affirmative action regime would continue. 

Yet in the very next sentence, Roberts appears to close that loophole. Racial adversity, he writes, can only be factored in as a reflection of an applicant’s greater qualifications:

[U]niversities may not simply establish through application essays or other means the regime we hold unlawful today… 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. 

In his concurring opinion in the Harvard case, Justice Clarence Thomas indicates that the Court’s ruling makes it very hard for any such discriminatory regime to take root:

The Court today makes clear that, in the future, universities wishing to discriminate based on race in admissions must articulate and justify a compelling and measurable state interest based on concrete evidence. Given the strictures set out by the Court, I highly doubt any will be able to do so. 

The battle lines are clear, then. Part II of this analysis will explain how universities are trying to outflank the Court to maintain a diversity regime, and how conservative leaders are pushing back.