ABSTRACT
In SFFA v. Harvard (SFFA), the Supreme Court further restricted a university’s right to consider the racial identity of individual applicants during admissions. The ruling has spawned considerable confusion regarding a university’s ongoing ability to pursue racial diversity, racial inclusion, and other equality-oriented goals—whether through “race-conscious” or “race-neutral” means. To assist institutions attempting to navigate the ruling, this article outlines a set of key legal rights and responsibilities that universities continue to possess following SFFA.
INTRODUCTION
In SFFA v. Harvard (SFFA), the Supreme Court further restricted a university’s ability to consider the racial identity of individual applicants during the admissions process. The immediate consequences are clear. SFFA makes it more difficult for colleges and universities to employ “racial classifications” to pursue equality-oriented goals like a racially diverse student body, a racially inclusive campus, and the “fair appraisal” of each applicant’s academic talent and potential.
But contrary to headlines, SFFA did not “end affirmative action.” I do not mean to understate SFFA‘s practical or doctrinal impact. Many universities have already jettisoned or modified a range of preexisting policies—including some untouched by the decision itself. Still, popular opinion has entrenched a narrative that overstates what is, as a formal matter, a surprisingly narrow opinion.
Universities possess a robust set of tools to create more racially diverse and inclusive campus communities. SFFA changed that, but less so than common headlines suggest. One danger is that if scholars, university counsel, and institutional leaders acquiesce to this dominant narrative, even well-meaning universities will eliminate or narrow still-lawful conduct. To guard against overcorrection and self-censorship, this article makes three discrete contributions.
Part I situates SFFA in a broader campaign to morally stigmatize and legally outlaw equality-oriented efforts in the United States. I start here because a purely legal analysis cannot capture the rising threat to racial equality in higher education and beyond. Moreover, the ideological alignment between rightwing litigants and the Supreme Court’s conservative supermajority means that what is lawful today could be unlawful tomorrow.
Part II outlines a university’s right to realize a more racially just admissions process and campus environment. For purposes of precision, I break this part into two subsections. The first focuses on policies that employ racial classifications to further equality-oriented objectives like racial diversity and racial inclusion. The second focuses on policies that employ colorblind criteria to promote those same equality-oriented ends. Whereas SFFA rendered racial classifications more difficult to defend, the decision fortified the legal case for colorblind criteria.
Part III identifies two legal obligations that universities must continue to satisfy after SFFA. Specifically, Title VI and its implementing regulations require covered universities to avoid practices that produce an unjustifiable disparate impact and to remedy racially hostile environments. This part is meant to remind stakeholders that whatever SFFA‘s reach, the opinion did not eliminate independent legal duties arising under federal civil rights law.
I. SITUATING SFFA IN THE FIGHT FOR RACIAL EQUALITY
Racial equality and multiracial democracy have always been contested propositions in America. SFFA is part of this story. The litigation targeted modest affirmative action policies at elite institutions with their own histories of racial exclusion. By ruling against Harvard University and the University of North Carolina (UNC), Chief Justice Roberts made it more difficult for the defendants—among other universities to reckon with and remedy institutional legacies of racial exclusion. Aspects of Chief Justice Roberts’s opinion also legitimized the contemporary consequences of those legacies by treating the defendants’ race-conscious policies as the constitutional equivalent of Jim Crow segregation.
A. Looking Back: SFFA Advances a Decades-long Campaign to Limit Civil Rights Remedies
In SFFA, the Supreme Court made it harder for universities to consider an applicant’s racial identity during admissions. The opinion was predictable in certain respects, surprising in others. One surprise was SFFA‘s formally narrow scope. As I detail below, Chief Justice Roberts limited his holding to Harvard and UNC’s respective admissions policies and did not overturn established precedent.
That said, many foresaw that colorblindness would animate a ruling that struck down equality-oriented policies. The Chief Justice marshalled the rhetoric of “colorblindness” to refashion the Fourteenth Amendment and Brown v. Board of Education—two of our nation’s most racially progressive precedents—as impediments to building more racially diverse and inclusive universities. At the same time, Chief Justice Roberts failed to engage the only actual evidence of discrimination presented in the litigation—evidence that Harvard’s admissions process harmed Asian Americans to the benefit of similarly situated White applicants.
At bottom, SFFA invalidated the modest consideration of race within two holistic admissions processes. Such limited interventions within elite university admissions have never been a panacea to racism—nor should we expect them to be. Still, the sorts of policies Harvard and UNC employed better position universities to advance a range of democratic and equality-oriented values—for example, desegregating historically White campuses; promoting a more individualized, equitable, and “meritocratic” selection process; and cultivating racially inclusive campuses where all students can enjoy the full benefits of university membership.
The ongoing need for race-conscious policies should be clear. Racism remains one of the most powerful forces in American society—a phenomenon that shapes all corners of our public and private lives. Chief Justice Roberts’s opinion, in contrast, reads as if race is irrelevant to admissions until the moment affirmative action arrives.
This narrative follows a centuries-long discourse that reframes civil rights remedies as a threat to civil rights. The Supreme Court has condemned equality-oriented projects since the wake of the Civil War. In 1883, two decades after the Emancipation Proclamation, the Supreme Court struck down Congress’s first attempt to prohibit racial discrimination in places of public accommodation. Invoking a narrative that now shapes affirmative action debates, Justice Bradley characterized the nation’s first federal antidiscrimination law as “preferential treatment” for Black Americans.
This discursive and legal assault on civil rights remedies did not end in the nineteenth century. Over the past fifty years, the Supreme Court has erected an equal protection framework that deems remedial race-conscious policies no less suspect than the apartheid regime they are meant to remedy. This legal symmetry trades on rhetoric that discredits affirmative action as “preferential treatment” that harms “innocent victims.” As I and others have detailed, framing affirmative action as a “racial preference” relies on a highly contestable empirical claim; it is not a statement of objective fact. Nonetheless, centuries of targeted rhetoric now shape (and, arguably, overdetermine) public perceptions of affirmative action and related race-conscious projects.
Even affirmative action advocates often defend such policies as a justifiable “preference”—that is, a defensible departure from a baseline of race neutrality. This dynamic, which can transform affirmative action’s formal champions into ambivalent advocates, defined SFFA. As I previously observed, neither Harvard nor UNC zealously championed its own policy. And by omitting key facts and theories, both fed the same narrative the Chief Justice offered: that race was irrelevant to their respective admissions processes until the moment affirmative action arrived.
Among other omissions, neither defendant highlighted the myriad ways that race matters before, during, and after admissions. The defendants said little about their own unremedied legacies of racial exclusion, the unearned racial preferences that colorblind criteria extend to White applicants, nor the relationship between racial demographics and racial harassment on campus. Harvard and UNC know better than anyone that White racial advantages infiltrate their respective admissions practices. Even SFFA, the organization that sued Harvard, conceded this point when its expert highlighted 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. And yet, by eliminating Harvard’s affirmative action program, the Supreme Court made it more difficult for the university to remedy the actual sources of anti-Asian bias.
B. Looking Ahead: SFFA Buttresses a Resurgent Campaign to Lock in Racial Inequality
In SFFA, rightwing think tanks and foundations targeted Harvard and UNC’s race-conscious admissions policies. The ruling is a victory for Edward Blum (a well-known affirmative action opponent who engineered SFFA) and his well-resourced benefactors. But it does not end the assault on racial equality in higher education and beyond. It marks a new beginning. Much of the fight now shifts 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 “diversity, equity and inclusion” (DEI). If these attacks succeed, they could usher in a new era of equal protection law that renders the very goal of racial diversity legally suspect.
This future could arrive sooner than many realize. 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, Pacific Legal Foundation (which supported SFFA‘s lawsuits against Harvard and UNC) sued several of the nation’s most competitive public high schools for adopting facially neutral processes to increase racial diversity on campus. One prominent example includes Thomas Jefferson High School (TJ) in Fairfax, Virginia, which reduced reliance on standardized tests, dropped an application fee, and ensured representation from each feeder school.
In a case that now appears destined for the Supreme Court, Pacific Legal deems these practices a “new species of discrimination.” As a legal matter, the organization argues that any effort to alter an institution’s racial composition violates the equal protection clause. Law Professor Jonathan Glater has explained that were this theory accepted, it would render racial inequality “the [legally] relevant and normatively desirable baseline against which all changes to student selection must be measured.”
In line with the First Circuit (which rejected a related lawsuit targeting the Boston Exam Schools), the Fourth Circuit rejected Pacific Legal’s lawsuit against TJ. This was an appropriate ruling consistent with decades of precedent that insulates facially neutral policies from legal scrutiny. But as with SFFA, the challenges to race-neutral alternatives will reach a more sympathetic Supreme Court.
One cannot know how the TJ litigation will end. Prevailing doctrine is not on Pacific Legal’s side. But given this Supreme Court’s hostility to equality-oriented efforts, a ruling for Pacific Legal remains plausible even though it would require the conservative Justices to abandon their own principles and precedents. Universities should be mindful of this possibility, which would severely curtail the availability of nearly any effort to promote racial diversity, racial inclusion, or other equality-oriented ends. But that is not the world we currently inhabit.
To clarify SFFA‘s impact on admissions, I now identify several arguments universities can still employ to legally defend racial classifications. I then highlight how SFFA fortified the legal case for facially neutral practices including those expressly adopted to promote racial diversity and other equality-oriented goals.
II. LEGAL RIGHTS: WHAT UNIVERSITIES MAY DO TO PROMOTE RACIAL DIVERSITY AND INCLUSION
A. Policies That Employ Racial Classifications
One aim of this article is to trouble the narrative that SFFA ended affirmative action. Chief Justice Roberts narrowed a university’s right to consider the racial identity of students during admissions. But he did not rule that universities may never employ racial classifications to achieve racial diversity or other equality-oriented goals. When located within the Supreme Court’s broader affirmative action jurisprudence, SFFA reveals multiple paths to legally defend race-based admissions. I explore four below: (1) the “distinct interests” in diversity rationale, (2) the “remedial” rationale, (3) the “more quantifiable diversity” rationale, and (4) the “fair appraisal” rationale.
One preliminary note. It is possible that no set of facts could lead today’s Supreme Court to uphold a race-conscious admissions policy. Even if one accepts that premise, it need not follow that universities should abandon all such practices. Before SFFA reached the Supreme Court, many commentators predicted that Harvard’s and UNC’s policies would not survive the litigation. That widespread (and accurate) sentiment did not spark a wholesale retreat from race-consciousness in admissions or beyond. For institutions electing now to retreat, they should at minimum consider the legal defenses that remain viable even after SFFA.
1. The “Distinct Interests” in Diversity Rationale
In footnote 4, Chief Justice Roberts explicitly exempted military academies from his holding because of their “potentially distinct interests” in racial diversity. The Chief Justice explained that “[n]o military academy is party to these cases,” and “none of the courts below addressed the propriety of race-based admissions systems in that context.”
The relevant footnote offered little additional reasoning. Nor did the Chief Justice identify the precise contours of this “distinct interests” exemption. This silence invites at least two interpretations. On the one hand, the express exemption for military academies could imply that the exemption applies only to military academies. A separate interpretation would view military academies as one example of an educational institution with “potentially distinct interests” in diversity whose interests were not addressed in the litigation. Nothing in the opinion rules out this broader interpretation, which recognizes that other types of educational institutions might value racial diversity in ways meaningfully distinct from undergraduate research universities like Harvard and UNC.
For institutions of higher education, footnote 4 should invite the following question: Do we possess potentially distinct interests in diversity that SFFA did not address? If the answer is yes, that suggests a plausible path to defend a race-based admissions process. To survive legal attack, the institution would have to identify its distinct interests and persuade a court that those interests are constitutionally compelling. Among other possibilities, professional schools appear a natural fit to raise such an argument.
This includes medical schools and law schools, both of which belong to professional organizations with stated missions—and, many would argue, the moral obligation—to serve all communities in the United States.
To imagine what such an argument might entail for medical schools, the Association of American Medical Colleges’s (AAMC) SFFA amicus brief offers a starting point. That brief identified a diversity interest arguably distinct from those proffered by Harvard and UNC. The AAMC brief explains that “an overwhelming body of scientific research compiled over decades confirms, diversity literally saves lives by ensuring that the Nation’s increasingly diverse population will be served by healthcare professionals competent to meet its needs.” To concretize this point, the AAMC cites now robust empirical evidence that, for example, Black patients receive better health outcomes when treated by Black physicians. In short, the AAMC brief marshals a growing field of empirical scholarship that documents the need for medical schools to train a racially diverse medical workforce.
An array of data points ground this proposition. One recent experimental study found that “black male patients who had the opportunity to meet with a (randomly assigned) black male doctor ha[d] a consistent, large, and robust positive effect on the demand for preventives.” A separate 2023 study found that the increase of Black primary care physicians “was associated with higher life expectancy and was inversely associated with all-case Black mortality and mortality rate disparities between Black and White individuals.”
For present purposes, my goal is not to produce, in comprehensive and granular detail, the “medical school distinct interests” in diversity rationale. My more modest goal is to highlight that footnote 4 provides a potential defense for any institution that possesses distinct interests in racial diversity—whether it be a military academy, a medical school, or otherwise.
2. The “Remedial” Rationale
In SFFA, Justice Roberts expressly identified “two compelling interests [that] permit resort to race-based government action.” The second interest, specific to prisons, is inapposite to university admissions. But the first offers universities another legal rationale for race-conscious admissions. The Chief Justice explained that “remediating specific, identified instances of past discrimination that violated the Constitution or a statute” constitutes a compelling interest. In plain language, universities can employ racial classifications when necessary to remedy their own past or present acts of racial discrimination.
This “remedial” rationale is admittedly limited. As Chief Justice Roberts notes, the defense only applies to specific instances of legally cognizable discrimination attributable to the university itself. One hurdle is that the Supreme Court has steadily narrowed what constitutes legally cognizable discrimination, while expanding the evidence required to prevail under such a defense. The current contours of this rationale trace largely to City of Richmond v. J.A. Croson Co., a 1989 case involving Richmond, Virginia’s race-conscious set-aside. In Croson, the Supreme Court held that a defendant asserting the remedial rationale must provide a “strong basis in evidence for its conclusion that remedial action was necessary.”
This rule creates a substantial evidentiary hurdle for any institution raising the remedial rationale.
This burden need not, however, dissuade a university from pursuing this legal strategy. This is particularly true for universities with well-documented histories of unlawful discrimination—for example, universities that openly defied federal desegregation decrees following histories of de jure racial exclusion.
This includes institutions like UNC, one of the SFFA defendants. UNC presents itself as the nation’s “oldest public university.” This title obscures the fact that UNC formally excluded Black students for most of its history. Even after Brown v. Board of Education, UNC continued to formally bar Black students until federal courts expressly prohibited the practice in 1955. That ruling did not alter UNC’s commitment to racial exclusion. Rather than commit to desegregation, UNC fought federal integration orders for three decades.
That contest included a decade of litigation between UNC and the federal government—litigation that endured until President Reagan’s Department of Education brokered a settlement to govern desegregation across the UNC system. The consent decree terminated the litigation, but local civil rights leaders remained skeptical that UNC would desegregate its campuses. Elliott C. Lichtman, who had supported NAACP efforts to desegregate UNC over the preceding decade, termed the agreement “‘a triple end run’ around federal courts in Washington, civil rights laws and the Constitution.”
In the decades’ since, UNC has exhibited increasing commitment to remedy the vestiges of this legacy. This includes the modest race-conscious policy that the Supreme Court overturned in SFFA. Yet even under that policy, students of color documented the hallmarks of a racially hostile environment. Moreover, Black students have never comprised more than 9.2% of the undergraduate campus population. This figure marks a significant improvement from the total exclusion of Black students during UNC’s apartheid era. Still, in a state that is over 20% Black, one could reasonably argue that this peak reflects UNC’s failure to fully rectify its own legacy of racial exclusion.
The foregoing only begins to outline how UNC could proffer a “remedial” rationale. We lack a more fulsome account, in part, because UNC expressly disclaimed this argument before the Supreme Court. It is possible that UNC would have lost even had it advanced a remedial rationale and marshaled a robust record to ground the defense. Given the conservative Justices’ open hostility to racial classifications, arguments available in theory might be unavailable in practice.
But even if facts seem not to matter in the court of law, they remain critical in the court of public opinion. The prospect of a hostile Supreme Court should not overdetermine the arguments universities raise when defending race-conscious practices. Few, if any, universities will be able to escape the fallout of a resurgent movement to ban equality-oriented principles and policies nationwide. Against this backdrop, winning the legal battle matters. But so does winning the narrative battle.
On this point, I have elsewhere offered the following observation:
[B]ridging past to present enables universities to tell a fuller story about why race still matters. This act of truth-telling comprises an important intervention in itself—particularly against the backdrop of a growing campaign to erase the past through book bans and educational gag orders. When elite schools deny or diminish the past’s imprint on the present they sacrifice more than an opportunity to defend affirmative action. Such narratives also feed regressive talking points that seek to legitimize existing inequality by locating racism in an ignoble past.
3. The “More Quantifiable Diversity” Rationale
The “diversity” rationale refers to the proposition that universities “ha[ve] a compelling interest in a diverse student body” that can justify a narrowly tailored race-conscious admissions process. A majority of the Supreme Court first embraced the diversity rationale in Grutter v. Bollinger, a 2003 case that upheld the University of Michigan Law School’s race-based admissions policy. After Grutter, the diversity rationale became the primary—if not exclusive—legal argument universities employed to justify race-conscious admissions.
In SFFA, the plaintiff asked the Supreme Court to overturn Grutter and reject the diversity rationale. Chief Justice Roberts did neither—at least not formally. Rather than overturn Grutter or reject the diversity rationale, Roberts concluded that Harvard’s and UNC’s specific policies failed to satisfy existing precedent—including Grutter. According to the Chief Justice, the defendants’ proffered goals were “commendable” but insufficiently “coherent for purposes of strict scrutiny” and insufficiently measurable to “be subjected to meaningful judicial review.” He further condemned the defendants’ policies for violating limits Grutter had allegedly placed on racial classifications—specifically, that universities may never “use race as a stereotype or negative, and—at some point—they must end.”
Some have suggested that formalities aside, SFFA killed the diversity rationale and Grutter. As a practical matter, this might be true—that is, for this Supreme Court, no set of facts could save a race-based admissions policy designed to promote racial diversity. But if one takes Chief Justice Roberts at his word, a different conclusion is warranted: the diversity rationale remains available; Harvard and UNC just missed the mark.
A key question, therefore, is how could a university employ racial classifications in pursuit of racial diversity without meeting the same fate? One can start with Chief Justice Roberts’s claim that race-conscious policies may not operate as a “negative” or a “stereotype.”
As for the “negative” limitation, Chief Justice Roberts concluded that Harvard’s process operated as a “negative” because it “result[ed] in fewer Asian American and white students being admitted.” On its face, the pronouncement that racial classifications may not operate as a “negative” is indeterminate. One could read it as a requirement that racial classifications not yield a racial composition different than what would have arisen absent the racial classification. Alternatively, one could read the requirement to prohibit only those racial classifications that reduce the absolute number of any racial group. Note that the above interpretations implicitly presume that the racial composition that would arise absent the race-based policy is legitimate—morally and legally. If one questions this presumption, it invites a third interpretation: A race-based admissions policy operates as a “negative” only if the racial group that experiences less absolute or relative representation (under that policy) enjoys a legal entitlement to the racial demographics that would arise absent the policy.
At first glance, Chief Justice Roberts appears to be embracing the first reading; his reference to Asian Americans referenced the group’s relative representation—not absolute numbers. By extension, one might ask whether this effectively outlaws all racial classifications—which, often, are designed to produce a racial composition different than what would arise under colorblind conditions. But if one parses SFFA, it becomes difficult to sustain this rigid negative requirement. To begin, the Chief Justice notes that his opinion does not extend to military academies because those institutions have “potentially distinct interests” in diversity. If a rigid negative requirement outlawed all racial classifications, an institution’s potentially “distinct interests” in diversity would be legally irrelevant. The Chief Justice also notes that a university can employ affirmative action to remedy its own discrimination. As with the diversity rationale, the remedial rationale contemplates racial classifications that, by design, reduce the representation certain racial groups would enjoy absent affirmative action. One might argue that the remedial rationale is materially distinct (from the diversity rationale) because it treats the pre-existing racial baseline as constitutionally suspect—that is, the student body’s racial composition would be different but for prior discrimination. This logic folds the third interpretation into the “negative” analysis—if even implicit.
Even if one accepts this argument, it is unclear why similar logic could not extend to a racial distribution that is morally suspect even if lawful. Consider Harvard’s use of legacy preferences, which shaped the racial composition of Harvard’s student body by heavily favoring less qualified White applicants. Under prevailing equal protection doctrine, legacy preferences raise no independent legal concern because they are facially neutral. But as a normative matter, the racial preference they extend to White applicants renders the resulting racial composition suspect. Put differently, the question is whether the “negative” analysis leaves space to consider whether the racial composition that flows from colorblind criteria is itself legitimate. Assuming it does, a race-based policy that reduces one group’s (illegitimate) overrepresentation would not operate as a “negative” even though it reduces that group’s racial representation (relative to a process that lacked the racial classification).
There is one final reason to question whether Chief Justice Roberts introduced a rigid “negative” requirement. If Chief Justice Roberts is saying that no racial classification can reduce a group’s representation (relative to what it would have enjoyed under colorblind conditions), one would have to ask whether any racial classification could ever survive. Such a rule would render the compelling interest requirement superfluous and would appear to preclude all race-based practices—even if the asserted goal implicated interests that the Supreme Court tends to privilege such as national security.
The requirement that racial classifications not operate as a stereotype appears more easily addressed. According to the Chief Justice, Harvard and UNC traded on the forbidden “belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue.” Chief Justice Roberts further admonished the defendants for considering “race qua race”—that is, “race for race’s sake.”
This characterization appears to rest on Chief Justice Roberts’s view that Harvard and UNC valued diversity for its “discourse benefits”—that is, to foster a robust marketplace of ideas. Under this conception of diversity, racial categories can function as proxies for information about an applicant’s personal experiences and perspective. According to Chief Justice Roberts, when racial identity functions as a proxy for perspective, that constitutes “illegitimate stereotyping.”
This stereotyping concern should disappear if the racial category is important in itself—not as a proxy to discern something else about a student. In separate work, I invite universities to embrace an equality-centered conception of racial diversity that invites this shift. Specifically, I highlight the relationship between racial demographics and each student’s right to enjoy the full benefits of university membership. Extensive empirical research reveals that when students from negatively stereotyped groups are severely underrepresented, they are likely to confront unique identity-contingent burdens. These burdens, in turn, can compromise a student’s ability to learn, engage, and perform all essential components of university membership. This scholarship situates racial diversity as a prerequisite to racial equality—or more precisely, the present and personal equality interests of actual university students.
This equality-centered diversity rationale also avoids concerns about stereotyping. In fact, the social science on which it rests identifies affirmative action as a tool to reduce the racial stereotypes students of color often confront when numerically isolated in predominately White spaces. The same research on stereotype threat and social identity threat helps to concretize and quantify the harm students from negatively stereotyped racial groups experience when severely underrepresented on campus. This evidence responds to Chief Justice Roberts’s concern that Harvard and UNC’s respective policies “lack[ed] sufficiently focused and measurable objectives.”
As with the other rationales I identify, I am not claiming that a more quantifiable diversity rationale—that avoids the “negative” and “stereotyping” limitations—would survive before the present Supreme Court. Even if one doubts that a fortified diversity rationale would have saved Harvard and UNC’s respective policies, defending racial diversity as a key to racial equality performs an important discursive intervention. Specifically, it positions universities to intervene in public debates about the relationship between institutional environments, individual opportunity, and structural racism. Universities enjoy significant platforms to uplift the contested reality that race matters, in part, because racial demographics shape a university’s ability to ensure that every student, regardless of their racial identity, can enjoy the full benefits of university membership.
4. The “Fair Appraisal” Rationale
I now identify one final rationale that a university could employ to justify a race-conscious admissions policy. This “fair appraisal” approach is straightforward: unless a university considers applicant race, it will systematically undervalue the existing academic talent and potential of students of color—and thereby inflate the relative academic credentials of White applicants. This rationale trades on decades of empirical scholarship that show how standard measures of merit often understate the academic abilities of students from negatively stereotyped groups. Accordingly, considering applicant race positions universities to realize a more “meritocratic,” equitable, and individualized process that reduces the degree to which race shapes admissions outcomes.
The fair appraisal rationale can be conceived at various levels of abstraction. A “broad” conception might account for the ways that an applicant’s racial identity shaped their access to resources necessary to develop the skills and competencies standard metrics measure. This version assumes that even if a portion of group-based performance gaps reflect real differences in existing abilities, those differences should not dictate admissions outcomes because they (1) reflect access to training, not innate academic talent or potential and (2) internalize unearned racial advantage and disadvantage (themselves the vestiges of a formerly apartheid society).
A “narrower” version might instead account for the common failure of standard metrics to accurately capture the existing talent and competencies of students from negatively stereotyped groups. This “fair appraisals” story attends specifically to illusory portions of group-based performance gaps—portions that reflect measurement errors, not real differences in individual or group-based qualifications. If left unaddressed, these “racial mismeasures” operate as a racial preference for White applicants.
For present purposes, I focus on this narrower “fair appraisals” rationale because it enjoys the most direct doctrinal support. I refer specifically to Justice Powell’s opinion in Regents of the Univ. of Calif. v. Bakke. Many know Bakke as the case in which Powell introduced the diversity rationale. Far fewer are familiar with a separate piece of Powell’s opinion—his observation that affirmative action could produce a more objective and meritocratic admissions process: [The] fair appraisal of each individual’s academic promise in the light of some cultural bias in grading or testing procedures. To the extent that race and ethnic background were considered only to the extent of curing established inaccuracies in predicting academic performance, it might be argued that there is no “preference” at all.
Justice Powell recognized that standard metrics might understate the academic promise and potential of students from negatively stereotyped groups. In a detailed analysis of the above passage, Professor Devon Carbado has outlined how Powell’s “fair appraisal” framing alters standard conceptualizations of affirmative action: [Affirmative action] counteract[s] race-based disadvantages that students of color face as they prepare for college, as they put together their admissions file, and as that file is reviewed by admissions officers. At each of these steps, systematic biases introduce inaccuracies that understate the academic accomplishments and promise of those students. Affirmative action helps offset the disadvantages those biases create.
Carbado surfaces how the fair appraisal rationale—and its substantial empirical support—troubles the near ubiquitous assumption that race-conscious admissions policies constitute “preferential treatment” that harm “innocent” third parties. This matters, in part, because the presumption that affirmative action comprises a “racial preference” anchors the Supreme Court’s longstanding hostility to such practices. Yet even Justice Powell recognized that this characterization relies on the assumption that standard metrics accurately capture the existing abilities of all students.
Chief Justice Roberts employs this common conflation. On at least eighteen separate occasions in SFFA, the Chief Justice uses the term “preference” to characterize and de-legitimize the defendants’ race-based admissions practices. This framing internalizes the assumption that racial advantages and disadvantages do not infiltrate admissions processes until the moment affirmative action arrives. But as Carbado highlights, this assumption comprises a “highly contestable claim, not an empirical fact.” And as I have previously detailed, “a substantial portion of ‘achievement gaps’ reflect measurement errors that artificially inflate the relative merit of white students—not actual differences in preparation, ability, or motivation.” To borrow Justice Powell’s words, an affirmative action policy that counters these unearned white racial advantages should constitute “no ‘preference’ at all.”
Harvard and UNC could have employed a “fair appraisal” rationale. Neither did. This was disappointing, in part, because the limited evidence SFFA presented could have anchored this precise argument. Recall that SFFA alleged that Harvard intentionally discriminated against Asian Americans. To support this claim, SFFA presented evidence that anti-Asian bias (1) came from colorblind components of Harvard’s admissions process and (2) principally benefited wealthy White applicants.
More specifically, SFFA targeted Harvard’s personal rating, which “summarizes an applicant’s personal qualities based on an ‘applicant’s essays, their responses to short-answer questions, teachers’ and guidance counselors’ qualitative observations about applicants, alumni interviewers’ comments, and much other information.’” According to SFFA, Asian Americans received lower scores on that metric relative to similarly situated White applicants. Multiple theories could explain this disparity. One is that implicit biases caused evaluators—such as guidance counselors or alumni interviewers—to rate Asian Americans lower than White applicants for materially identical performance. A separate theory is that White applicants were more likely to attend private high schools with low student-to-guidance counselor ratios. Regardless of the theory, one thing is clear: Harvard’s formal race-based policy did not cause this alleged race-based harm.
Harvard could have argued that SFFA’s evidence of anti-Asian bias rendered affirmative action even more important—specifically, as a tool to counter “racial mismeasures” that inflated the qualifications of White students relative to their Asian American counterparts. Harvard never raised this argument. And in an ironic twist, by striking down Harvard’s existing affirmative action policy, Chief Justice Roberts hindered Harvard’s ability to mitigate the barriers Asian American students face while leaving untouched the practices that create those precise barriers.
B. Policies That Employ Colorblind Criteria
Above, I identified four rationales that remain available to defend race-conscious admissions policies. I also acknowledged that when it comes to race-conscious policies, even a robust factual record and sound theoretical argument might be insufficient before this Supreme Court. A different story concerns policies that employ colorblind criteria—that is, policies that do not distinguish between individual applicants on the basis of their respective racial identities. Whereas racial classifications are legally suspect, facially neutral conduct is presumptively constitutional—even if the policy is adopted to promote equality-oriented goals like racial diversity or racial inclusion on campus. Unfortunately, substantial commentary post-SFFA has generated confusion about the legality of such practices. This confusion heightens the risk well-meaning universities will jettison or otherwise avoid lawful conduct. Doing so might reduce legal and political attacks in the short term. But it comes at great expense and forfeits tools that remain legally secure even after SFFA. To aide against unnecessary overcorrection, I now highlight five facially neutral practices that present no constitutional concern.
1. Universities May Consider a Student’s Personal Experiences with Race and Racism
In SFFA, Chief Justice Roberts emphasized that universities remain free to consider each student’s personal experiences with race and racism: [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.
This passage should reassure universities that they may formally consider how race and racism affects, or has affected, their applicants—or what I term personal race/ism information. In many respects, this reassurance should not have been necessary; it reflects basic elements of the Supreme Court’s well-established equal protection jurisprudence. Existing doctrine draws a rigid distinction between policies that employ racial classifications and policies that employ colorblind (or facially neutral) criteria. Racial classifications are presumptively unconstitutional and must satisfy strict scrutiny. Facially neutral policies are presumptively lawful and need only satisfy rational basis review. The Supreme Court has justified this rigid dichotomy by arguing that racial classifications pose special concerns that do not implicate facially neutral conduct.
SFFA challenged Harvard and UNC’s use of racial classifications—that is, the component of their admissions processes that permitted reviewers to consider the racial identity of individual applicants. This explains why the defendants bore the near-insurmountable burden of satisfying strict scrutiny. Had Harvard and UNC possessed the same underlying goals but considered each student’s personal race/ism information (a facially neutral criteria), strict scrutiny would not have applied. Instead, SFFA would have had to prove that the defendants adopted that specific policy with “an impermissible racial purpose.” This is a near-insurmountable burden for the plaintiff, in part, because facially neutral policies enjoy substantial deference.
To appreciate the distinction between racial classifications and facially neutral criteria, consider the following hypothetical. Imagine two applicants with materially identical paper records. They grew up in the same affluent neighborhood, attended the same high school, received the same GPA and SAT scores, and engaged in the same extracurricular activity: the school newspaper. The students differ in two relevant respects. First, they possess distinct racial identities. The first student, Brett, identifies as White; the second, Neal, identifies as Asian American. The students self-report this racial identity information on their application forms. Second, the students have different experiences with race and racism. The students describe those experiences in their admission essays.
Brett describes his high school experience as relatively uneventful. He notes that his high school is overwhelmingly White but that he rarely thinks about his own racial identity or broader racial dynamics. The one exception came from his time on the school newspaper. He notes that unlike the school as a whole, the newspaper’s student staff is predominately Asian American. The teacher who oversees the newspaper is also Asian American. Brett shares that prior to joining the newspaper, he had never felt self-conscious about his racial identity. But he admits that in the newspaper’s office, he cannot help but feel vigilant about his racial identity—at times concerned about how the other members of the newspaper will perceive him and his actions. He recalls times when he felt anxious that if he revealed ignorance about Asian American history, he might confirm stereotypes his classmates hold about people racialized as White. He also reflects that his experience on the newspaper has heightened his appreciation for why racial representation can matter—and even affect how students feel inside the classroom.
Neal describes a different high school experience. Like Brett, Neal’s parents were high-earning professionals. But unlike Brett, Neal describes a childhood in which he was constantly thinking about his racial identity. He describes navigating predominately White environments where he routinely encountered subtle and more overt cues that he and his family were not welcome. He describes the exhaustion, stress, and fear that he regularly carries with him—experiences that are most acute when he is the only Asian American person in the room. In contrast to Brett, Neal describes the newspaper as a site of temporary relief—a place where he can let down his guard and “just be himself.” He longs for a university where he can avoid the toll of severe underrepresentation—both in student groups and in the classes he must take for his planned English/Art History double major.
To recap. The students provide two types of information: (1) their racial identity information and (2) their personal race/ism information. Nothing prohibits a university from obtaining, knowing, or otherwise learning about either type of information. The key doctrinal question is whether a university may consider either type of information when making an admissions decision. If Harvard considers Brett’s or Neal’s racial identity as a plus factor, that would constitute a presumptively unlawful racial classification. Harvard would have to satisfy strict scrutiny to save the policy. In contrast, if Harvard considers either applicant’s personal race/ism information, that would constitute a presumptively lawful facially neutral policy. The plaintiff would carry the burden of proving that Harvard adopted the policy with an “impermissible racial purpose.”
Two related points deserve note. First, the fact that universities can consider personal race/ism information dictates neither what constitutes personal race/ism information nor why universities should consider it. As to the what, this underdefined category of information could entail, inter alia, (1) whether a student attended a racially diverse high school; (2) whether the student was part of a severely underrepresented racial group in high school; (3) whether a student grew up in a formerly redlined neighborhood; (4) whether a student has relatives who physically fled racialized violence in the United States or abroad; (5) whether a student has relatives who lost property or personal liberty from racialized campaigns in the United States or abroad; (6) whether a student encounters forms of racial bias on a daily basis; (7) whether a student has formally studied race and racism; (8) whether a student has previously engaged in academic, professional, or other work that supports antiracist efforts.
As to the why, there are at least three obvious reasons why a university might positively weigh an applicant’s personal race/ism information: (1) it is part of academic “merit”; (2) it promotes a more holistic and individualized review; (3) it yields discourse and equality benefits.
Second, the source of the information does not affect the doctrinal analysis. If a university formally considers racial identity as a plus factor, that is presumptively unconstitutional—whether the university obtains the information through a self-reported check box or infers it through an admissions essay. The same applies to personal race/ism information. Whether the information comes from an admissions essay or elsewhere, use of that information raises no independent legal concerns. For various reasons, it might behoove a university to obtain such information through channels other than the admissions essay. Some personal race/ism information could be gleaned through surveys that ask students to answer specific questions. Other types of information could be available through indirect means. For present purposes, my goal is not to identify precisely what constitutes personal race/ism information, why a university would consider it, or how a university would acquire it. Those are questions each university should consider in light of their specific mission and local context. My primary goal is to (1) invite universities to think critically about the foregoing and (2) reiterate that reliance on personal race/ism information, regardless of the source, presents no independent constitutional concern.
2. University’s May Employ Colorblind Criteria to Promote Racial Diversity
One can generalize the preceding section into the broader proposition that SFFA did nothing to limit a university’s ability to utilize colorblind criteria to realize equality-oriented goals. Federal guidance from the Departments of Justice and Education (DOJ/DOE Guidance) puts this plainly: “[N]othing in the SFFA decision prohibits institutions from continuing to seek the admission and graduation of diverse student bodies, including along the lines of race and ethnicity, through means that do not afford individual applicants a preference on the basis of race in admissions decisions.” The DOJ/DOE Guidance appropriately distinguishes between facially neutral admissions policies (no constitutional concern) and policies that distinguish between individual students based on their racial identity (presumptively suspect).
In SFFA, Chief Justice Roberts reinforced this distinction. To begin, the Chief Justice reiterated that racial classifications pose special concerns that demand heightened scrutiny. According to the Supreme Court, those concerns are specific to racial classifications; they do not extend to facially neutral conduct.
One sees this within strict scrutiny itself. Narrow tailoring, for example, requires universities to avoid race-conscious policies if “race-neutral alternatives” could achieve the desired end. This requirement reinforces two key points. First, race-based affirmative action is constitutionally suspect because of the racial means, not the racial motive. Were it otherwise, a “race-neutral alternative” should not save the policy. Second, all racial classifications are suspect, but only some racial motives are impermissible. And, critically, permissible racial motives include equality-oriented goals like racial diversity and racial inclusion.
Imagine if SFFA had challenged UNC’s former policy of de jure segregation (as opposed to its recent affirmative action policy). UNC could not save this exclusionary and animus-laden policy by proving that race-neutral alternatives were unavailable. Nor could UNC constitutionally pursue the same ends through facially neutral means. No court would suggest as much. The reason is that in the context of de jure segregation, the constitutional infirmity lies in the racial means and the racial motive. Juxtapose this with what actually transpired in SFFA. Every conservative Justice condemned the challenged policies and racial classifications more broadly. Many of those same opinions admonished Harvard and UNC for failing to adopt (or even invited the defendants to adopt) “race-neutral alternatives” to achieve a racially diverse student body. This highlights that Harvard and UNC’s policies were suspect because they employed racial classifications, not because they aimed to promote racial diversity or related goals.
Justice Kavanaugh makes this point explicit. In his concurrence, Kavanaugh quotes Grutter for the proposition that narrow tailoring “requires courts to examine . . . whether a racial classification is ‘necessary’—in other words, whether race-neutral alternatives could adequately achieve the government interest.” Kavanaugh must know that in Grutter, the Law School argued that racial classifications were necessary to realize a racially diverse student body. Were there any confusion, Kavanaugh concludes with the following passage (which itself cites prior opinions from Justices O’Connor and Scalia): [A]lthough progress has been made since Bakke and Grutter, racial discrimination still occurs and the effects of past racial discrimination still persist. . . . [G]overnments 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.
Justice Gorsuch also invokes “race-neutral alternatives” to discredit the defendants’ use of racial classifications. The relevant passage appears to condone “universities across the country” that have sought racial diversity through facially neutral means like “reducing legacy preferences, increasing financial aid, and the like.” Gorsuch extends this argument by noting that SFFA “submitted evidence that Harvard could nearly replicate the current racial composition of its student body without resorting to race-based practices.”
Even Justice Thomas, the Court’s most vocal affirmative action opponent, offered a similar take. Also citing Scalia’s concurrence in Croson v. Richmond, Thomas remarked that nineteenth century laws designed to remedy racial inequality were permissible because they avoided racial classifications: “[E]ven if targeting race as such—[these laws] likely were also constitutionally permissible examples of Government action ‘undoing the effects of past discrimination in a way that does not involve classification by race,’ even though they had ‘a racially disproportionate impact.’” Thomas included the 1865 and 1866 Freedmen’s Bureau Acts, both of which directed assistance to “freedmen.” Thomas reasoned that neither Act contravened the Constitution’s equality guarantees because “freedman” is a “formally race-neutral category, not blacks writ large.”
The upshot is that under prevailing doctrine, facially neutral efforts to achieve racial diversity raise no constitutional concern. Chief Justice Roberts’s majority opinion is in accord. The Chief Justice condemned Harvard and UNC’s means while condoning their motives. The Chief Justice concluded that neither defendant proffered a viable compelling interest. But he did not disparage the defendants’ diversity-related motives. To the contrary, Chief Justice Roberts deemed them “commendable.”
Also, as noted, SFFA formally left Grutter and the diversity rationale in tact. This means that racial diversity remains a constitutionally compelling interest—at least as a formal matter. Were the Supreme Court to invalidate a facially neutral policy designed to promote racial diversity, it would effectively enshrine a constitutional framework at war with itself—one in which racial diversity is both compelling and impermissible.
3. Universities May Know and Learn the Racial Identity of Individual Applicants and May Model and Analyze Their Practices’ Racial Impact
SFFA does not prohibit universities from knowing or learning their applicants’ individual racial identities or collecting and analyzing that information in the aggregate. SFFA requested that the Supreme Court prohibit Harvard and UNC from knowing or becoming aware of each applicant’s racial identity. It is not surprising that the Supreme Court never seriously considered this request, which SFFA effectively abandoned during the litigation. Beyond the request’s impracticability, universities need to obtain and analyze racial demographic information to identify and avoid policies and practices that disparately impact certain groups.
Chief Justice Roberts made clear that admissions officers may know the racial identity of individual applicants when he identified race/ism information as a permissible consideration. In the same passage, Chief Justice Roberts emphasized that Harvard and UNC could not use that information to covertly reestablish “the regime we hold unlawful today.” As discussed above, the unlawful “regime” refers to the defendants’ use of racial classifications, not their knowledge of individual racial identities nor their diversity-related goals.
If confusion persists, consider any other context in which an entity is permitted to know individuals’ racial identities but prohibited from treating those individuals differently based on that information. Racial profiling is a useful analogy. If the police choose to stop person A because person A is (or is perceived to be) Asian American, that race-based disparate treatment would raise serious Fourteenth Amendment concerns. At the same time, nothing prohibits the police from learning the racial identity (or perceived racial identity) of the individuals they encounter on the street. If anything, collecting and analyzing demographic information about police encounters better positions law enforcement to avoid or minimize practices that disparately harm certain racial groups.
Translated to the admissions context, nothing prohibits Harvard from preemptively modeling, contemporaneously tracking, or subsequently analyzing the racial impact of its admissions process. Nor does SFFA prohibit Harvard from adjusting its process based on analysis that reveals a colorblind criterion is disparately harming an identifiable racial group. Imagine if halfway through an admissions cycle, Harvard discovers that Asian American admits are conspicuously underrepresented. That triggers concern and a corresponding internal analysis that identifies two likely culprits: (a) Harvard’s overreliance on guidance counselor letters of recommendation and (b) Harvard’s legacy preferences. Both criteria systematically advantage White applicants, who gain admission over their equally qualified, if not more qualified, Asian American counterparts.
As noted, Harvard has only filled half its admit class. The question, therefore, is what can Harvard do (practically and legally) to correct or mitigate a process defect that favors White applicants over equally (or more) qualified Asian American applicants. Per SFFA, a concern would arise if Harvard rectified the problem by treating Asian American identity as a plus factor in the admissions process. That would be “reestablish[ing]” the “regime” SFFA deemed “unlawful.” In contrast, it should raise no legal concern if Harvard ceased considering both criteria for the remainder of its admissions cycle. Even if done for a racial purpose, this mid-cycle shift reflects the type of “race-neutral alternative” conservative Justices have endorsed for decades.
4. 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 equality-oriented goals like racial justice, antiracism, racial diversity, and racial inclusion. Such public proclamations are lawful and often key to fostering a welcoming campus environment. There is a common narrative that universities—and the government more broadly—should be neutral. The basic claim is that the government should not pick sides, particularly on controversial topics. In certain respects, this is true. When a public university regulates the speech of others, the First Amendment and related laws and values often demand some degree of neutrality. But in other contexts, neither law nor values demand neutrality. This is especially true when the government is acting as a speaker (as opposed to when the government acts as a regulator).
Education law scholar Kristine Bowman has explained that “[p]ublic universities have broad leeway under the government speech doctrine to advance their views while excluding others’ viewpoints.” Bowman observes that the Supreme Court has “made clear that the government may freely express viewpoints and that it does not have (or need) First Amendment protections when doing so.” Free speech scholar Catherine Ross has similarly noted that “[n]o constitutional hurdle restrains administrators from promoting chosen messages, including exhortations that encourage empathy, sensitivity, tolerance of difference, and civil norms.”
We might not see it, but universities choose sides all the time. This includes decisions over institutional policies, values, and curriculum. Bowman highlights this 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.” In each instance, the university is not being neutral. It is taking sides and expressing values. First Amendment scholar Steven Calabresi has likewise observed that a neutrality requirement would conflict with the university’s core mission to pursue truth and knowledge: “I would add that public 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 or divisive. In fact, such topics might increase the need for a university to share its viewpoint through intentional counterspeech. This includes situations that, if left unaddressed, could create a hostile environment for students of color. To illustrate how a university can use counterspeech to promote a racially inclusive climate, Bowman recounts how University of Florida’s President Kent Fuchs used his platform to condemn the ideas espoused by rightwing idealogue Richard Spencer.
When Spencer came to the University of Florida in the fall of 2018, Fuchs was outspoken in his opposition to Spencer’s message. Fuchs conveyed messages to the university community via email, video, and social media; the campus newspaper; and in public settings. Bowman notes that Fuchs spoke persuasively, seeking to convince those in the university community and beyond that Spencer’s views were wrong. Fuchs avoided coercive speech; he neither punished Spencer nor threatened to punish those who supported him.
5. SFFA Applies to Admissions Decisions Only
In the months since SFFA, many universities have questioned their ability to consider race in aspects of institutional governance that transcend admissions. Common examples include financial aid and other recruitment and retention strategies. It is understandable that university officials view such policies as under threat. But it is a mistake to conclude that SFFA directly governs these other institutional practices. To start, Chief Justice Roberts explicitly limited his opinion to the challenged conduct: Harvard and UNC’s race-conscious admissions practices. Beyond tying his analysis to the defendants’ respective policies, the Chief Justice underscored that these “cases involve whether a university may make admissions decisions that turn on an applicant’s race.” This language supports the position that SFFA does not determine the legality of other institutional policies that might also consider a student’s racial identity.
Beyond Chief Justice Roberts’s limiting language, factual distinctions between admissions processes and other equality-oriented practices highlight why SFFA does not necessarily translate. To begin, affirmative action opponents tend to frame admissions as a “zero-sum” context whereby admission for one student means rejection for another. This framing does not naturally extend to recruitment and retention practices often designed to remove barriers that exclude or undermine the educational experience of students from historically excluded groups (but have no obvious “negative” effect on other groups).
The DOJ/DOE Guidance makes a similar point: SFFA does not require institutions to ignore race when identifying prospective students for outreach and recruitment, provided that their outreach and recruitment programs do not provide targeted groups of prospective students preference in the admissions process, and provided that all students—whether part of a specifically targeted group or not—enjoy the same opportunity to apply and compete for admission. Such outreach and recruitment efforts can remove barriers and promote opportunity for all, and institutions remain able to permissibly consider students’ race when engaged in those efforts.
It is possible that this Supreme Court would deny any legal distinction between admissions practices and other institutional efforts to create racially diverse and inclusive campuses. But that does not mean universities should prematurely cede still-lawful conduct. It would be as if abortion providers closed shop when Dobbs was still pending because many predicted the Supreme Court would overturn Roe v. Wade. It is, of course, prudent for institutions to plan for possible future rulings. My more modest hope is that universities not unmindfully extend SFFA beyond its formal holding by eliminating beneficial policies or practices that remain legally defensible.
III. LEGAL OBLIGATIONS: WHAT UNIVERSITIES MUST DO TO PROMOTE RACIAL DIVERSITY AND INCLUSION
SFFA does not relieve universities of two important legal obligations. First, federal law mandates that universities avoid unjustifiable racial disparities. Second, universities have a legal duty to create and maintain equal learning environments. Both legal obligations require regular vigilance and attention to racial outcomes and racial dynamics on campus.
A. Title VI’s Implementing Regulations Prohibit Disparate Impacts
The United States Department of Education (DOE) issues regulations to effectuate Title VI’s various mandates. These “implementing regulations” include a provision that prohibits universities from employing admissions criteria that disproportionately and unjustifiably exclude students of color. This disparate impact provision furthers one of Title VI’s core aims: to remove barriers that deny certain groups equal access to sites of educational opportunity. The United States Department of Justice (DOJ) has explained that the “disparate impact regulations seek 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. The basic requirement is that a university must avoid policies or practices that unjustifiably harm an identifiable racial group. When a policy is shown to have a negative disparate impact on an identifiable racial group, the university must offer a “substantial legitimate justification” to support the policy. Even if the university offers an otherwise valid justification, the policy still violates Title VI’s implementing regulations if there was an available alternative that could have achieved the same result with a less discriminatory impact.
Title VI’s disparate impact provision implicates university policies that disparately disadvantage students of color during the admissions process and on campus. This could include a university’s overreliance on facially neutral admissions criteria like standardized tests, guidance counselor letters of recommendation, or legacy preferences. A Boston-based civil rights organization invoked these regulations in a recent complaint submitted to the Office of Civil Rights (OCR). The complaint alleges that Harvard’s legacy admissions preferences, which overwhelmingly favor wealthy White applicants, violate Title VI and its implementing regulations.
B. Title VI Mandates Equal Learning Environments
SFFA did not diminish universities’ ongoing 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 remedy racially hostile environments. Title IX creates parallel institutional obligations that protect students on the basis of sex.
Congress passed Title VI as part of a sweeping federal civil rights law known as the Civil Rights Act of 1964. Among other benefits, Title VI enabled Congress to use its Spending Power to enforce the Supreme Court’s desegregation mandate contained in Brown v. Board of Education. Title VI was also designed to ensure that federal tax dollars would not subsidize entities that engaged in racial discrimination. Prior to its passage, President John F. Kennedy outlined Title VI’s purpose: 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.
Congress subsequently passed Title VI, which states that “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” Along with other federal agencies, the OCR within the United States DOE 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.” OCR further explains that “an alleged harasser need not be an agent or employee of the recipient, because this theory of liability under Title VI is premised on a recipient’s general duty to provide a nondiscriminatory educational environment.”
If OCR determines that a racially hostile environment exists, it will evaluate whether the university has taken sufficient and effective remedial action. To satisfy Title VI, a university’s response “to a racially hostile environment 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.
These obligations implicate the many sites of institutional governance that shape a university’s campus climate. That includes the university’s admissions process and retention practices. When universities fail to recruit, admit, and retain critical masses of students from negatively stereotype groups, the result can amplify effects like tokenization, stigma, and isolation—thereby compromising enrolled students’ right to a learning environment free from racial harassment.
IV. CONCLUSION
SFFA made it more difficult for universities to realize a host of equality-oriented goals. 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—with legal, political, and narrative fronts—has already begun.
