The Court’s Affirmative-Action Ban Is a Gift in Disguise

I have never been a fan of campus-diversity lingo. In its orthodox expressions, it praises diversity as an aspect of well-rounded training: Every student benefits from being exposed to a diversity of people and perspectives. Tomorrow’s leaders in industry, or medicine, or law, the argument runs, will be more effective if in their university experience they share classrooms with people of various backgrounds and life experiences. Such language seems designed to pacify all and satisfy none. And it is especially unsatisfying in its implication that some of the main beneficiaries of diversity programs are those who come from traditionally privileged groups. That implication always makes this kind of diversity-speak feel slightly disingenuous, like a political expedient striving to mask its true, and important, aims, which are to expand access, equity, and inclusion for students from historically underrepresented groups.

One wishes instead that universities would assertively articulate the value of social justice and of the public good. The diversity-speak that has become entrenched in campus life is, rather, part of a larger drift toward limiting the scope of higher education to job training. In this constrained vision, degrees are reduced to consumer goods meant to make graduates more effective market actors. Those trends are well documented, and justly criticized, in Christopher Newfield’s The Great Mistake (2016).

Don’t get me wrong: those who serve in campus diversity, equity, and inclusion offices do important work that is being unjustly attacked by know-nothing politicians. I am not criticizing them or their efforts. But the limited scope of diversity-speak does not yield great policy or win a broad base of adherents, and can lead to excessive focus on superficial adjustments to the racial composition of the student body.

In my time as a faculty member in the City University of New York system, I never heard the standard diversity lingo. But I did hear a good deal about the “CUNY Mission,” with its deep commitment to delivering first-rate higher education to New York’s working-class minority and immigrant communities, a commitment rooted in ideals of social justice. It felt like everyone associated with CUNY — faculty, staff, graduate students, and administrators — all sought to build a true people’s university. That aim did not come from the top down, as part of a campus strategic plan. Rather, as Conor Tomás Reed shows in New York Liberation School, it was a result of sustained activism in the 1960s and ‘70s, which dedicated CUNY to reimagining the university classroom as the launching point of a progressive, coalitional politics. A campus that gathers and mobilizes various local constituencies sharing a dedication to learning cultivates thick inclusion, an inclusion founded in a common cause of radical equality. If that sounds utopian it is because universities are supposed to be utopian. They are monuments to the human thirst for knowledge, which cuts across all categories of class and identity. That we have built universities is one of the few things ennobling our petty, grubbing, heedless species.

With this in mind, I find myself reacting to the Supreme Court’s recent decision in Students for Fair Admissions’ cases against Harvard College and the University of North Carolina at Chapel Hill with profoundly mixed feelings. I certainly did not begin with great esteem for Students for Fair Admissions, the latest iteration of Edward Blum’s longstanding crusade for the entitled. Nor did I have much admiration for the court of Chief Justice John G. Roberts Jr., which in the past five years has engaged in an unprecedented assault on public-sector unions with its decision in Janus v. AFSCME (2018), an assault on women’s reproductive rights with its decision in Dobbs v. Jackson Women’s Health Organization (2022), and an erosion of the right to strike and the authority of the National Labor Relations Board in Glacier Northwest v. International Brotherhood of Teamsters (2023). Before I even had the chance to read the admissions decision, the court also struck down the Biden administration’s student-loan-forgiveness program, which, as Justice Elena Kagan notes in her dissent, seemed clearly legal within the terms of the Higher Education Relief Opportunities for Students Act.

Nonetheless, this particular decision offers one of those very rare moments when a right-wing assault on liberal pieties shares some common ground with a left critique. The Roberts opinion declares that the racial categories universities have used for admissions are “plainly overbroad,” and so cannot serve the diversity ends that universities have claimed they do. “Asian” fails to distinguish between South Asian and East Asian, so there is no way of determining if either of these groups is underrepresented. And “Hispanic,” the opinion continues, is arbitrary, lumping together students of widely divergent origins. During oral arguments, UNC’s counsel did not know how his client would classify applicants of Middle Eastern background. In his concurring opinion, Justice Neil M. Gorsuch notes that such applicants are, oddly, classified as “white.”

All of this can have very strange effects: High-achieving South Asians and East Asians are forced to compete for the 18 percent of admissions spots that Harvard deems an acceptable number in the “Asian” column; a Black student who has grown up on the Upper East Side of Manhattan and received a gold-plated private-school education is not distinguished from a Black student who attended public schools in Newark, N.J.; a first-generation college student who is the child of Chicanx migrant workers can get passed over for the son of an Argentine diplomat; the daughter of a Syrian refugee chambermaid can be squeezed out of an admissions spot by legacy admits and members of the lacrosse and rowing teams. Justice Clarence Thomas points out that the current system provides elite institutions with feel-good reasons for disadvantaging Jewish applicants, which summons an ugly history of anti-Semitism at Harvard and other Ivy League institutions. And he remarks that in an increasingly multicultural society, self-identification will become evermore complex and variegated, leading to even less defensible race-based decision-making by universities. The majority is right to say that it is all a bit of a mess.

Of course universities do many things ineptly without the Supreme Court deigning to notice. The only thing that should matter is whether the current diversity regime is legal. In its departure from precedent, the majority is on uncertain ground. The court itself pushed higher education toward its current diversity-speak with Justice Lewis F. Powell Jr.’s opinion in University of California v. Bakke, later underscored by Grutter v. Bollinger. In these decisions, such aspirations as righting historical wrongs or advancing social justice are deemed too nebulous to allow for judicial review; universities were allowed instead to consider race in order to obtain the educational benefits flowing from a diverse student body. That rationale has become firmly institutionalized as a direct result of the court’s meddling, which makes one wonder if they ought to have kept their noses out of the whole business all along.

“We expect that 25 years from now,” the court declared in 2003, “the use of racial preferences will no longer be necessary to further the interest approved today.” The majority in the SFFA v. Harvard and SFFA v. UNC cases takes this so-called sunset clause to announce a firm deadline. The dissenting justices more convincingly argue that the language is aspirational, that Grutter tasks universities with periodic review of their policies to determine whether they are still necessary, and that the stubborn persistence of racial disparities in American society justifies extending the use of racial preferences for the foreseeable future. In his opinion’s most offensive moment, Chief Justice Roberts casts the majority as defending the legacy of Brown v. Board of Education, which eliminated the “separate but equal” regime created by Plessy v. Ferguson. Justice Sonia M. Sotomayor has a forceful and clear-sighted riposte: “equating state-sponsored segregation with race-conscious admissions policies that promote racial integration trivializes the harms of segregation and offends Brown’s transformative legacy.” Obviously.

Still, this particular round of judicial meddling may have pushed universities in the right direction. But only if it is read aright. It is certainly misread by Sen. Joni Ernst of Iowa and several other Republican senators who claim in a recent letter to Secretary of Education Miguel Cardona that “the Supreme Court’s central holding [is] that considering an applicant’s race in college admissions violates the Equal Protection Clause of the Fourteenth Amendment.” That is flatly wrong. The decision does allow colleges to consider race, though not to use race as a stand-alone factor in making admissions decisions. Chief Justice Roberts emphasizes that his opinion should not 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.” Justice Sotomayor offers more practical guidance: “Colleges and universities can continue to consider socioeconomic diversity and to recruit and enroll students who are first-generation college applicants or who speak multiple languages.” Universities can legitimately promote “socioeconomic and geographic diversity,” and implement “plans that increase community-college transfers, and plans that develop partnerships with disadvantaged high schools.” All of this has been confirmed in a recent guidance issued by the Department of Justice, which states that “institutions of higher education remain free to consider any quality or characteristic of a student that bears on the institution’s admissions decision, such as courage, motivation, or determination, even if the student’s application ties that characteristic to their lived experience with race.” Furthermore, “institutions may continue to pursue targeted outreach, recruitment, and pipeline or pathway programs.”

Universities are being steered toward what they ought to have been doing all along. Pipeline and outreach programs have long existed, but are often undersized and underfunded; they tend to depend on the volunteered time of faculty and graduate students. In the wake of the SFFA decision, and to put an end to its legal wrangling with the plaintiff in that case, my own institution, Yale University, has increased its investment in outreach and pipeline programs, including expanding partnership with New Haven public schools and developing summer programs for high-achieving students from underrepresented backgrounds.

Within the terms of the decision, universities are also perfectly free to offer massive expansions of need-based tuition relief. According to The New York Times’s recent College Access Index, the total cost of attendance for a student from a middle-income family is $29,200 at Penn State. Not surprisingly, only 13 percent of its freshman class is Pell-eligible. We live in a world where Ivy League institutions frequently have more Pell-eligible students than do state flagships. That is a scandal, and it is not a result of the Supreme Court’s SFFA decision; it is a result of decades of myopia and bungling by state legislatures and university administrations.

Responses to the SFFA decision tend to imply that the Supreme Court has dealt a death blow to diversity on campus. The real fight now is against that misperception. The court has ended a cheap and lazy path to achieving a superficial form of racial diversity via admissions. The better path that universities should have been taking all along — investment in outreach, inclusion, and pipeline programs; robust need-based financial support — remains open. And now that Grutter is dead, universities can, and must, openly claim a more compelling set of core values: advancing social justice, serving the public good, pursuing true democracy. If universities fail to do these things, it will not be the fault of the Supreme Court. It will be owing to the penny-pinching and pusillanimity of universities themselves.