The Next Fight for Racial Justice Starts Now

In Students for Fair Admissions v. Harvard (SFFA), the Supreme Court made it harder for universities to consider an applicant’s racial identity during admissions. Chief Justice Roberts’ majority opinion was notably narrow. Rather than overturn established caselaw (as many predicted), Roberts limited his analysis to Harvard University and the University of North Carolina’s respective admissions policies. Still, the outcome was predictably radical. For centuries, the Supreme Court has obstructed efforts to deliver equality for Black Americans. Roberts continues this ignoble tradition. In the name of “colorblindness,” the Chief Justice usurped our country’s most racially progressive precedents to further a racially regressive agenda.

The result is bad for universities and worse for multiracial democracy. Race-conscious admissions have never been a panacea to racism. But they offer an effective tool to desegregate historically white campuses; promote a more individualized, equitable and “meritocratic” selection process; and cultivate equal learning environments where all students can thrive. The reason is obvious. Racism remains one of the most powerful forces in American society—a phenomenon that shapes all corners of our public and private lives. Yet Justice Roberts acts as if race is irrelevant until the moment affirmative action arrives. His ruling makes it harder for America to reckon with racism. And drawing closer to psychological warfare than legal analysis, Justice Roberts sharpens a centuries-long discourse that reframes civil rights remedies (like affirmative action) as the primary threat to civil rights.

Had there been any doubt, the recent Supreme Court term highlighted that the current majority will legislate a rightwing agenda from the bench—even if that entails gutting precedent, manufacturing facts, and ignoring arguments. Court reform must be on the table. But even short of structural change, federal policymakers—among other stakeholders—enjoy a menu of options to safeguard Brown v. Board’s promise of equal educational opportunity for all.

In the remainder of this piece, I offer three primary contributions. First, I highlight the stakes and situate SFFA within a broader campaign to outlaw antiracism writ large. Second, I outline how institutional leaders can navigate the post-SFFA legal landscape. Third, I call upon the federal government to safeguard every student’s right to a campus free from racial harassment.

Explain the Stakes

Justice Roberts facilitates a broader anti-democratic agenda. Institutional leaders must help their constituents understand why. This requires explaining the stakes.

SFFA buttresses a broader campaign to lock in and legitimize racial inequality.

In SFFA, rightwing think tanks and foundations targeted “race-conscious” admissions policies—that is, policies that permit admissions officers to consider the racial identity of individual students within a holistic process. Justice Roberts’ opinion is a victory for Ed Blum and his well-resourced benefactors. But it does not end the rightwing assault on racial equality in higher education. It marks the beginning. The fight now turns to SFFA’s fallout. Blum and his supporters have already turned their sights on equality-oriented efforts untouched by the decision itself. This includes recruitment and retention practices, tracking and analyzing racial outcomes, and any program under the banner of “equity, diversity and inclusion.” The endgame is clear: a world where universities lack any and every tool to realize a racially just and inclusive campus community.

In SFFA, affirmative action opponents argued that if Harvard and UNC wanted racial diversity, they should employ “race-neutral alternatives.” Yet before SFFA had even concluded, many of Blum’s backers were supporting lawsuits that challenged institutions for doing precisely that.

Since 2020, the rightwing Pacific Legal Foundation has sued several of the nation’s most coveted public high schools for adopting race-blind policies to increase racial diversity on campus. As one example, Thomas Jefferson High School (TJ) in Fairfax, Virginia reduced reliance on standardized tests, dropped an application fee, and ensured representation from each feeder school. Pacific Legal sued TJ for making these changes—even though they are all “race-neutral.” The (legally and morally bankrupt) rationale: any effort to alter an institution’s racial composition is unlawful. As Professor Jonathan Glater has artfully illuminated, Pacific Legal wants to make a status quo defined by inequality “the [legally] relevant and normatively desirable baseline against which all changes to student selection must be measured.”

The Fourth Circuit recently rejected Pacific Legal’s challenge. But as with SFFA, this lawsuit will reach a more sympathetic Supreme Court. Taken together, these two legal fronts reveal a strategic campaign to transform racial diversity from a constitutionally compelling interest into a constitutionally suspect motive. If Pacific Legal prevails, it will create a new right to racial inequality—a right that would bar any effort to promote racial diversity or reduce racial disparities.

SFFA aligns with a rightwing campaign of discriminatory censorship.

In the summer of 2020, the murders of Black Americans including George Floyd, Breonna Taylor, and Ahmaud Arbery sparked a global uprising for racial justice. Building on organizing by the Movement for Black Lives and others, a multiracial coalition of Americans marched with a simple plea: America, reckon with racism. The country could no longer deny that racism exists in the here and now—a pervasive force stitched into society’s very fabric that hinders the march to a true multiracial democracy. The basic math was simple. Race matters, and racism is real. Account for it now or invite another century defined by racial inequality and anti-democracy.

Three years later, the GOP continues to double down on a campaign of discriminatory censorship defined by hundreds of “anti-CRT” and “Don’t Say Gay” bills, thousands of book bans, and efforts to defund libraries and purge educators who dare to teach the truth about racism in America. The goals are clear: First, engineered learning loss. Discriminatory censorship is designed to deprive students of the facts and theories that connect racial inequality to racism. Second, stigmatize equality-oriented efforts by redefining antiracism as the new racism.

SFFA is an extension of this campaign. Harvard and UNC’s race-conscious policies comprised modest antiracist interventions—that is, the precise practice millions of Americans called for in that explosive summer of 2020. By accounting for race, Harvard and UNC rendered race and racism less relevant in their respective admissions regimes. Yet in an opinion untethered to fact, law, or history, six unelected Justices denied Americans a critical tool to reckon with racism. And akin to the rightwing actors who bemoan antiracism as the new racism, Justice Roberts and his colleagues framed a modest civil rights intervention as the new Jim Crow.

Affirmative Action Counters Racial Preference.

Affirmative action has long faced a structural vulnerability: even its supporters are often ambivalent advocates. This dynamic defined SFFA. Neither Harvard nor UNC, the formal defendants, zealously championed its own policy. In fact, both compromised the legal and moral case for race-conscious admissions by omitting key facts and theories.

Among other omissions, neither defendant highlighted the myriad ways that race matters before, during, and after the admissions process. The defendants said little about their own unremedied legacies of racial exclusion; the unearned racial preferences that “colorblind” policies extend to white applicants; or the relationship between racial demographics and racial harassment on campus.

As a result, affirmative action’s formal champions facilitated their opponents’ main talking point: that race-conscious policies constitute “racial preferences” and contravene “merit.” This well-rehearsed claim relies on the fiction that race does not matter until affirmative action arrives. Harvard and UNC know better than anyone that white racial advantages infiltrate all corners of their respective admissions regimes. Even Blum’s expert conceded this point when highlighting that Harvard’s personal rating and legacy preferences harm innocent Asian Americans (and other students of color) to the benefit of less qualified white applicants. Harvard and UNC’s race-conscious policies offered a meaningful—if insufficient—corrective. By denying Harvard and UNC that modest tool, Justice Roberts ensures an admissions regime in which race matters more, not less.

Provide Clear Guidance

Supreme Court decisions often create confusion. SFFA is no different. One rising concern is that universities will jettison lawful conduct to avoid legal exposure and political pressure. To avoid unnecessary over-correction and self-censorship, federal and state officials ought to provide clear and comprehensive guidance concerning SFFA’s scope. At least two overarching observations warrant attention.

First, even as Roberts made it harder for universities to employ race-conscious admissions, his decision is limited in several respects.

• The ruling applies to admissions decisions only. Justice Roberts highlighted that the underlying “cases involve whether a university may make admissions decisions that turn on an applicant’s race.” (emphasis added). This language supports the position that SFFA does not determine the legality of other institutional policies—such as financial aid or recruitment strategies—that might also consider a student’s racial identity.
• All universities retain the right to consider each student’s individual experiences with race and racism. Justice Roberts emphasized 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, be it through discrimination, inspiration, or otherwise.” This language should reassure universities that they may consider how race and racism affect, and have affected, individual students. Personal essays offer one limited tool to obtain this information. Policymakers and universities should develop other mechanisms for universities to learn how race and racism affects, or has affected, their applicants.
• Nothing in the ruling limits a university’s right to employ “race-blind” criteria to promote racial diversity. Justice Roberts determined that neither Harvard nor UNC articulated a compelling interest necessary to justify their respective race-conscious policies. At the same time, he characterized their diversity-related goals as “commendable”—which is more than enough to legally support “race-neutral alternatives.”
• The ruling exempts institutions with “distinct interests” in racial diversity. Justice Roberts explicitly exempted military academies “in light of [their] potentially distinct interests” in racial diversity. There is no reason to assume that military academies are the only type of educational institution with such “distinct interests.” Certain professional schools—e.g., medical schools and law schools—also arguably possess “distinct interest” in racial diversity that the litigation left unaddressed.
• The ruling does not prohibit universities from knowing or learning the racial identity of individual applicants. Nor does it prohibit universities from collecting or analyzing that information. In fact, obtaining racial demographic information is critical so universities can avoid admissions processes that produce an unlawful disparate impact (see below).

Second, universities may proudly proclaim their equality-oriented values.

Nothing in SFFA limits a university’s expansive right to openly and unapologetically express its commitment to racial justice, diversity, equity, and inclusion.

We often hear that universities should be neutral; that they should not pick sides. There is some truth to this. When a public university regulates the speech of others, the First Amendment and related principles often demand some degree of neutrality.

But when a university speaks, there is no neutrality requirement. Universities choose sides all the time. Education law scholar Kristine Bowman highlights this often-invisible reality: “When university presidents speak at convocation and graduation, and when they communicate regularly with their campuses, they often are opining and seeking to persuade rather than demanding compliance.” First Amendment scholar Steven Calabresi similarly observes that a neutrality requirement would conflict with the university’s most basic mission of pursuing truth and knowledge: “[P]ublic colleges, universities, and secondary schools could not even function if they did not choose to praise some viewpoints and criticize others. The praising of some things and the disapproving of others is basically at the core of what education itself is all about.”

A university’s right to speak is not diminished when a topic is controversial, divisive, or associated with a political party. In this moment of rising and coordinated attacks targeting people of color, LGBTQ+ people, and religious minorities, it is critical that universities to engage in counter-speech.

Enforce the Law

Public narratives about affirmative action often overlook a key fact: Universities have a legal duty to create and maintain an equal learning environment for all. Universities also have a duty to avoid unjustifiable racial disparities. Both requirements require constant vigilance and attention to racial dynamics on campus.

Title VI Mandates Equal Learning Environments

SFFA does not diminish a university’s obligation to create equal learning environments for all students. Specifically, Title VI of the Civil Rights Act of 1964 mandates that universities take affirmative steps to prevent racially hostile environments.

Congress passed Title VI as part of a sweeping federal civil rights law known as the Civil Rights Act of 1964. Prior to its passage, President John F. Kennedy outlined Title VI’s purpose as follows:

Simple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes, or results in racial discrimination. Direct discrimination by Federal, State, or local governments is prohibited by the Constitution. But indirect discrimination, through the use of Federal funds, is just as invidious; and it should not be necessary to resort to the courts to prevent each individual violation.

The Office of Civil Rights (OCR) within the United States Department of Education enforces Title VI and its implementing regulations. OCR has explained that “the existence of a racially hostile environment that is created, encouraged, accepted, tolerated or left uncorrected by a recipient” with actual or constructive knowledge violates Title VI. To constitute a racially hostile environment, the underlying conduct (e.g., physical, verbal, graphic, or written) must be “sufficiently severe, pervasive or persistent so as to interfere with or limit the ability of an individual to participate in or benefit from the services, activities or privileges provided by a recipient.”

If OCR determines that a racially hostile environment existed, it will then evaluate whether the university took sufficient and effective remedial action. To satisfy legal obligations, a university’s response “must be tailored to redress fully the specific problems experienced at the institution as a result of the harassment . . . the responsive action must be reasonably calculated to prevent recurrence and ensure that participants are not restricted in their participation or benefits as a result of a racially hostile environment.”

In short, Title VI mandates that covered universities take affirmative measures to prevent racially hostile environments. Failure to do so violates students’ civil rights and exposes the university to legal liability and the potential loss of federal funding.

Many policies and practices can help curate an equal learning environment for all. Above all, universities must consistently monitor inter-personal and environmental factors that shape the racial climate on campus. This includes attending to the demographic composition of students, faculty, and institutional leadership. When numerically underrepresented, students from negatively stereotyped groups face a heightened threat of racial harassment, stereotype threat, and other environmental forces that can undermine their civil rights.

Title VI’s Implementing Regulations Prohibit Disparate Impacts

The United States Department of Education (ED) promulgates regulations to effectuate Title VI’s various mandates. Among other provisions, Title VI’s implementing regulations prohibit unjustifiable disparate impacts. This provision “seeks to ensure that programs accepting federal money are not administered in a way that perpetuates the repercussions of past discrimination.”

Under disparate impact theories of discrimination, the analysis focuses on the consequences of a university’s actions, not the university’s motive or intent. Universities must avoid policies that produce an unjustifiable disparate impact on an identifiable racial group. When a policy is shown to have a negative disparate impact, the university must offer a “substantial legitimate justification” to support the policy. Even if the university offers an otherwise valid justification, the policy violates Title VI’s implementing regulations if an alternative approach could have achieved the same goal with a less discriminatory impact.

Translated to the admissions context, Title VI’s disparate impact provision implicates policies that disparately harm students of color. This could include a university’s over-reliance on ostensibly “race-blind” admissions criteria like standardized tests, legacy preferences, or athletics. Consistent with the foregoing, Lawyers for Civil Rights recently filed a complaint with OCR claiming that Harvard violates Title VI and its implementing regulations because the university’s legacy preferences overwhelmingly favor wealthy white applicants.

Conclusion

SFFA dealt a blow to the progress towards a multiracial democracy. Looking ahead, danger lies in both understating and overstating SFFA’s significance. To guard against either outcome, I have offered a roadmap to help institutional leaders navigate the post-SFFA legal and political landscape. This case is over. But the next fight for racial justice has already begun.