Yesterday’s affirmative action decisions were long (237 pages) and extensively critiqued by others. So I’ll try to keep this short.
Here is the bottom line: Technically, Chief Justice Roberts does not quite overrule Grutter (although Justice Thomas can’t help but quip “Grutter is, for all intents and purposes, overruled.”). Practically speaking, Roberts’ reformulation of Grutter and its progeny is so stringent that it will be extremely difficult for any university to satisfy.
That is deeply problematic, for all the reasons that the dissents and national civil rights groups have underscored. But it is not necessarily the end of the story. As Justice Sotomayor puts it, “[a]lthough the Court has stripped out almost all uses of race in college admissions, universities can and should continue to use all available tools to meet society’s needs for diversity in education.” I see five potential paths that remain relevant:
1. Essays: The majority leaves a window open for student essays as part of the college application possess:
[A]s 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. [] But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today. (A dissenting opinion is generally not the best source of legal advice on how to comply with the majority opinion.) “[W]hat 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.” [] 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.”
(Citations omitted).
My take-away here is that student essays should be largely unrestricted both in terms of the questions posed and the content students may provide — as they must be, given the important expressive interests at stake. Back in 2012, the Deans of Yale and Harvard Law advanced a similar argument in Fisher I (disclosure: I co-authored the brief):
Essays are a critical component of the application process at law schools such as Yale and Harvard, and it is not uncommon for the personal statement of minority applicants to explain the ways in which race has shaped their lives or perspectives. Applicants’ references are an essential component of their admissions files, and reference letters frequently mention race in explaining how an applicant has demonstrated positive qualities and skills. We do not understand how such discussion could possibly be suppressed.
Consider the practical alternatives. We might instruct applicants not to mention their race in their personal essays; we might redact any explicit or implicit references to race that nevertheless appear in applicant essays; we might advise reviewers to ignore race in their letters of recommendation. We might direct faculty to ignore any inferences they might draw from an application file about the relevance of race.
These censorial approaches are deeply unattractive. They would not only deprive us of valuable and relevant information, but they would also stifle applicants, recommenders, and faculty. To take such steps would seem fundamentally at odds with our nation’s traditions of freedom of expression and academic freedom.
Going forward, it is hard to imagine universities getting in the business of censoring or limiting students who write an essay about race or diversity. A number of institutions already have space for a separate diversity statement, which may allow more room for applicants to describe themselves in detail while also capturing other aspects of their experiences and achievements. Nonetheless, it is worth minding the subtext of the Chief’s warning, which is essentially don’t get too cute, particularly in how universities quantitatively weigh and score essays. I would take that seriously.
2. Race-neutral admissions. University policies that are facially race-neutral, including things like the Texas “Top Ten Percent” plan, are still on the table. Justice Kavanugh stresses that “governments and universities still ‘can, of course, act to undo the effects of past discrimination in many permissible ways that do not involve classification by race,” citing Scalia and O’Connor’s opinions in Croson. Justice Gorsuch highlights states that have increased socioeconomic preferences. Even Justice Thomas praises the “race neutral” initiatives at the University of California and states that “[r]ace-neutral policies may thus achieve the same benefits of racial harmony and equality . . . .” Justice Sotomayor drives the point home:
To be clear, today’s decision leaves intact holistic college admissions and recruitment efforts that seek to enroll diverse classes without using racial classifications. Universities should continue to use those tools as best they can to recruit and admit students from different backgrounds based on all the other factors the Court’s opinion does not, and cannot, touch. Colleges and universities can continue to consider socioeconomic diversity and to recruit and enroll students who are first-generation college applicants or who speak multiple languages, for example. Those factors are not “interchangeable” with race. . . . [But a]t SFFA’s own urging, those efforts remain constitutionally permissible.
Altogether, there is a wide majority of the Court that would allow universities to use race-neutral means of achieving diversity. To be clear — that’s not the same as a Grutter-style admissions process — but it’s something. There may be other lessons to draw from policymakers and administrators in places like California and Washington. However, universities presumably will want to be careful about race-neutral policies that yield results that are a bit too perfect or consistent over time (which turned out to be an issue in the Harvard litigation).
3. Gender. Yesterday’s decisions do not address the role of sex or gender in admissions. That’s not terribly surprising, since that issue was not litigated here — but it can materially affect the college application process. Therefore, universities may continue to consider sex / gender and the composition of each incoming class as part of their admissions decisions. Depending on the institution and the year, effects may vary as to whether it benefits men or women.
4. Military. The Chief Justice added a conspicuous footnote 4 in the middle of his opinion:
The United States as amicus curiae contends that race-based admissions programs further compelling interests at our Nation’s military academies. No military academy is a party to these cases, however, and none of the courts below addressed the propriety of race-based admissions systems in that context. This opinion also does not address the issue, in light of the potentially distinct interests that military academies may present.
That noteworthy exception tracks the Court’s solicitude for the military on the issue of diversity. It is also reminiscent of Grutter, where an extraordinary amicus brief by Carter Philip, Virginia Seitz, and Joe Reeder featured prominently at oral argument and in Justice O’Connor’s decision. Today, I would assume footnote 4 applies not only to West Point and the Naval Academy, but to a number of other military colleges and universities. Justice Sotomayor’s dissent points out that civilian universities also train military leaders, including through ROTC programs. If a civilian university had a separate admissions program for a ROTC program, then it is an open issue in my mind whether footnote 4 could apply.
5. Religious universities. The majority opinion does not say anything about private, religious universities, which may have a sincere religious belief that racial diversity or other forms of diversity are part of their religious mission or theological teachings. Kathleen Sullivan filed a noteworthy amicus brief on this issue on behalf of Catholic colleges and universities, including Georgetown University. It is entirely plausible to me that, if one such university asserts a religious basis for racial diversity (e.g., under RFRA), then they could win such a claim. (I should note that Justice Sotomayor suggests the majority does not expressly exempt religious universities, but I do not read it quite that way.)
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At the end of the day, it remains to be seen to what degree yesterday’s decisions will chill efforts by universities — or embolden opponents of affirmative action (or DEI initiatives) to commence years of new litigation. But if universities are serious about continuing to advance diversity in ways that comport with the Harvard and UNC rulings, then there are at least some options still on the table.