August 30, 2023

Even Without Affirmative Action, Schools Still Have the Freedom to Pursue Diversity

Aaron N. Taylor, Executive Director, Center for Legal Education Excellence®
Diversity Programs
Policy and Advocacy

Race-conscious affirmative action in higher education is dead. While Chief Justice Roberts stopped short of explicitly overturning past precedent in Students for Fair Admission (SFFA)1,  the roadblocks put forth in his majority opinion render the direct consideration of applicant race (and ethnicity) a relic of a more progressive past. With this decision, schools have been deprived of one of the most effective means of fostering student diversity. Harvard University and the University of North Carolina, whose admission policies Roberts deemed unconstitutional, existed 234 years and 166 years respectively before notching their first Black graduates. Since then, both schools have made notable progress diversifying their student bodies. The direct consideration of applicant race was a primary tool.

Despite SFFA, schools still possess ample power to pursue diverse student bodies. This power, affirmed by Roberts in the majority opinion, is embodied in academic freedom, the historical power of higher education institutions “to determine for [themselves] on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.” In 1974, the U.S. Supreme Court heard DeFunis v. Odegaard2,  in which a White applicant filed suit against the University of Washington Law School after being denied admission. The applicant alleged that the law school’s “minority admissions program” was a form of unlawful discrimination, given that his race disqualified him from consideration through the program. The school had used the program to extend opportunities to members of racial and ethnic groups that had “historically been limited in their access to the legal profession.” 

The SCOTUS did not adjudicate the merits of DeFunis, deeming the matter moot because the plaintiff had since been granted admission. But a dissent by Justice William O. Douglas laid out the contours of future affirmative action litigation. While he expressed skepticism of the special program, Douglas noted: 


The educational policy choices confronting a university admissions committee are not ordinarily a subject for Judicial oversight; clearly it is not for us, but for the law school, to decide which tests to employ, how heavily to weigh recommendations from professors or undergraduate grades, and what level of achievement on the chosen criteria are sufficient to demonstrate that the candidate is qualified for admission.


This statement captures the essence of academic freedom espoused by the SCOTUS in the 1957 case, Sweezy v. New Hampshire3, which posits: “The essentiality of freedom in the community of American universities is almost self-evident.” Four years after Defunis, the SCOTUS made a ruling in another affirmative action case: Regents of the University of California v. Bakke4. Citing Sweezy, the controlling opinion in Bakke put forth the following sentiment:


Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment. The freedom of a university to make its own judgments as to education includes the selection of its student body.


Justice Lewis Powell, who wrote the controlling opinion, deemed student diversity to be a “compelling interest” of universities. Powell relied on assertions made by higher education experts regarding the benefits of diversity in creating an “atmosphere of speculation, experiment and creation — so essential to the quality of higher education.” Bakke spawned seven separate opinions, none garnering a majority of the justices. This created confusion regarding whether Powell’s opinion was indeed controlling.

In 2003, the SCOTUS upheld the constitutionality of the University of Michigan Law School’s consideration of race in admission. One of the issues in the case, Grutter v. Bollinger 5,  was whether pursuit of a diverse student body was indeed “compelling.” Writing for the majority in Grutter, Justice Sandra Day O’Connor affirmed Powell’s previous pronouncement as the law of the land, stating: “Our holding today is in keeping with our tradition of giving a degree of deference to a university's academic decisions, within constitutionally prescribed limits.”

In Grutter, Justice Clarence Thomas castigated the majority for what he considered “unprecedented deference to the Law School.” Thomas expressed grave suspicion of the law school’s true motives. He argued that the law school was most interested in “remaining elite and exclusive,” creating its “need to discriminate on the basis of race.” He cited the law school’s heavy reliance on the Law School Admission Test despite “the poor performance of blacks, relatively speaking.” Thomas asserted that there are “an infinite variety of admissions methods” that the law school could employ in lieu of the “intractable” consideration of race. Implicit in Thomas’s harangue is an acknowledgement that schools enjoy broad freedom in determining the factors they consider in admission and the weights accorded those factors. Even though Thomas expresses skepticism of the “constitutionalization” of academic freedom, his criticisms are rooted in the premise.

Ten years after Grutter, the SCOTUS addressed another challenge to the consideration of race in admission. Abigail Fisher, a White applicant, sued the University of Texas after being denied undergraduate admission. The university had devised an admission process in which it considered race as a “factor of a factor of a factor.” Moreover, pursuant to state law, about 75% of the entering class was admitted without regard to race. Nonetheless, Fisher alleged this limited consideration led to her unconstitutional exclusion from the university. The SCOTUS would hear two iterations of the case — in 2013 (Fisher I)6  and in 2016 (Fisher II)7.  The Court would not reach the merits in Fisher I. It remanded the case back to the appeals court for further consideration after finding that the appellate judges had “applied an overly deferential good-faith standard” in affirming the constitutionality of the admission program. Strict scrutiny was the appropriate standard. 

On remand, the appeals court once again affirmed the program’s constitutionality. The SCOTUS then agreed to review the appeals court’s decision a second time. Justice Anthony Kennedy, writing for the majority, held that the university’s consideration of race met the requirements of strict scrutiny and, therefore, was constitutional. He noted that, “considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.” Justice Samuel Alito’s dissent in Fisher II portended what we would see seven years later in Roberts’s majority opinion in SFFA.

Alito complained that the majority had not required the University of Texas to identify “with any degree of specificity the interests that its use of race and ethnicity is supposed to serve.” This failure, according to Alito, hamstrung the Court’s efforts to identify metrics by which to judge the constitutionality of the admission plan. In SFFA, Roberts stated that while the interests espoused by both universities were “commendable,” they were “not sufficiently coherent for purposes of strict scrutiny.” Roberts then iterated that in this context, schools are owed little, if any, deference. This assertion departs from previous precedent, effectively ensuring the end of race conscious affirmative action. But Roberts affirmed the expansive scope of academic freedom when he stated, “Universities may define their missions as they see fit.” He then goes on to clarify 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.” 

These statements confirm that schools are still free to cultivate diverse learning environments and reap the well-documented benefits that flow therefrom. The direct consideration of applicant race is no longer possible; but schools still define their own missions and still determine how merit is conceptualized in their admission processes. In short, schools still have ample power to attract and enroll student bodies that reflect the diversity — racial, ethnic, and otherwise — of our society. This is a central tenet of academic freedom — a tenet that SFFA preserves.