AccessLex Institute Statement on Students for Fair Admissions (SFFA) Supreme Court Rulings

In June 2023, the U.S. Supreme Court (SCOTUS) issued its long-anticipated rulings in the Students for Fair Admissions (SFFA) cases against Harvard University and the University of North Carolina. The rulings severely restrict the use of race-conscious affirmative action in the context of admission to selective education programs. Until today, schools were given broad latitude in considering an applicant’s race in the context of a holistic admission process. The consideration flowed from the immense educational benefits of diverse learning environments. These benefits are so vast that for more than a half century the Court deemed them “compelling,” until the SFFA rulings.

The rulings, however, do not wholly restrict the consideration of applicant race. Schools are still allowed to consider “how race affected an applicant’s life, be it through discrimination, inspiration, or otherwise” and how those experiences are “tied to a quality of character or unique ability” that the applicant would bring to the learning environment. The individualized nature of this allowance is labor-intensive and costly, potentially having a discouraging effect on schools that receive large numbers of applications. But most damaging will be the intensified hostility to important notions of diversity, equity, and inclusion, even towards efforts that fall beyond the scope of the rulings.

The impacts of the rulings will be significant and noticeable, serving to decrease diversity across the higher education spectrum. A recent AccessLex study found that, on average, state-level affirmative action bans led to a five percentage-point decrease in the proportion of J.D. degrees awarded to underrepresented people of color. These downward trends intensify over time, from a decrease of four percentage points one year following a ban to a decrease of eight percentage points seven years later. In short, state-level affirmative action bans predictably harm racial and ethnic diversity. The SFFA rulings will spread such impacts nationally.

Throughout its 40-year existence, AccessLex Institute has worked to increase access to legal education for all, with a particular focus on providing pathways to the legal profession for people from underrepresented racial, ethnic, and socioeconomic backgrounds. We view these efforts through the frame of not only benefiting individuals but also their families and communities. The aggregate positive effects are societal and enduring.

The SFFA rulings will not stem our efforts to pursue our mission of empowering the next generation of lawyers:

• Through LexScholars, our flagship diversity pathway effort, we will continue to provide resources to aspiring lawyers from underrepresented racial and ethnic groups as well as underrepresented socioeconomic groups, irrespective of race.
• Through our research and grantmaking, we will continue to seek answers to important questions about legal education and the profession, including those pertaining to the experiences of aspiring lawyers of color.
• Through our policy efforts, we will continue to advocate for more need-based financial aid for law students and borrower-friendly federal policies that support access to legal education and affordable repayment, with the goal of leveling the proverbial playing field for underrepresented and disadvantaged people.
• With our tools, we will continue to support and encourage data-informed decision making by ensuring useful and relevant information is accessible and usable by anyone with an interest in legal education and the profession.

AccessLex remains committed to fostering racial and ethnic diversity in law schools and the legal profession. We will continue to support our member law schools and the public in ways that comply with the law. We will also continue to support aspiring lawyers, from law school admission to bar admission, with an enhanced focus on providing resources to those who need them most.