Education Law in the Post-Affirmative Action Era

Today, it remains to be seen whether schools will incorporate the holdings in SFFA and 303 Creative more speedily or more deliberately. Time will tell, and school attorneys are watching.

The striking down of affirmative action in college admissions marks the end of one era, but it might be the beginning of a new round of litigation on race discrimination in schools.

In Students for Fair Admissions v. President and Fellows of Harvard College (“SFFA”), the Supreme Court found that the admissions programs of both Harvard College and the University of North Carolina failed multiple tests of constitutionality. They “lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful endpoints.”

The principles that the Court fortified in its opinion extend beyond college admissions and implicate educational institutions at all levels, at least public institutions and those that receive federal financial assistance. The pronouncement in SFFA is as sweeping as it is explicit: “Eliminating racial discrimination means eliminating all of it.”

Given the breadth of the principle and the clarity with which the Court expressed it, the amount of activity currently taking place in schools that is almost certainly illegal is staggering. Justice Thomas’ concurring opinion noted a study that showed, “43% of colleges offered segregated housing to students of different races, 46% offered segregated orientation programs, and 72% sponsored segregated graduation ceremonies.”  It is difficult to see how any of these practices would pass muster under the rules stated in SFFA.

Similar acts of segregation and discrimination are occurring at the elementary and secondary levels, as well. The form and manner of such programs vary, and the euphemistic neologisms used to describe them proliferate. But SFFA has rendered presumptively invalid any lessons, activities, assemblies, meeting groups, working groups, or other school-sanctioned events where attendees are separated by race or where some races are invited while others are excluded. 

Educational institutions might attempt to design programs to meet the strict scrutiny standard applied in SFFA. Some might view the Court’s admonition that racial classifications must have a “most exact connection” with “an exceedingly persuasive justification that is measurable and concrete enough to permit judicial review” as a kind of challenge.  If there is any space in that needle, however, passing a thread through it might prove to be prohibitively tough.  

What is certain is that the justifications offered by the colleges in SFFA fell far from the mark. To put it mildly, the Court was unimpressed with diversity goals such as “adapt[ing] to an increasingly pluralistic society”; “better educating . . . through diversity”; and “enhancing appreciation, respect, and empathy, cross-racial understanding, and breaking down stereotypes.” Not that such goals are not laudable; the problem is that they are too abstract and subjective for courts of law. To persist on their equity projects, schools would have to imagine a whole new set of justifications that can be objectively measured and can withstand strict scrutiny. Complicating matters, groups are now contemplating disparate impact challenges to legacy admissions. It might be a better use of resources just to stop discriminating.

Another decision that the Court issued the day after SFFA calls into question related practices in higher education. In 303 Creative, LLC v. Elenis, the Court held that the government cannot, through the application of anti-discrimination statutes, compel or coerce a website designer to create sites for same-sex weddings where such weddings contravene the designer’s religious beliefs. The general principle of 303 Creative is that “the government may not compel a person to speak its own preferred messages.”  The Constitution does not tolerate forcing speakers to choose among “remaining silent, producing speech that violates their beliefs, or speaking their minds and incurring sanctions for doing so.”

303 Creative casts doubt on the legality of the practice by colleges and universities of requiring Diversity, Equity, and Inclusion (“DEI”) statements from applicants for academic positions. Not everyone who seeks employment with or admission to an institution of higher learning will agree with the orthodox opinion on campus. Those who are confronted with writing DEI statements as part of their applications will face the choice of remaining silent, producing speech that violates their beliefs, or speaking their minds and being denied a position. Legal challenges to this practice should be expected.

Adverse employment actions against faculty who oppose DEI dogma make even easier cases. Black professor Tabia Lee was fired by a community college in California for transgressions including: questioning antiracist ‘orthodoxy,’ seeking accuracy in the college’s land acknowledgments, trying to bring a ‘Jewish inclusion’ event to campus, declining to join a ‘socialist network,’ refusing to use the terms ‘Latinx’ and ‘Filipinx,’ and inquiring why the word ‘Black’ was capitalized but not ‘white.’ The college has asserted its reasons for her firing, and the case is being litigated. If Doctor Lee’s perspective on her case is at all accurate, then her treatment was profoundly unconstitutional.

Ironically, the colorblind aspiration that the Court has endorsed is practically unspeakable in some academic circles. We at FAIR have seen public school lessons where statements like, “There’s only one human race,” and concepts including “Meritocracy Myth” are taught to be “covert white supremacy.” The same lessons use the term “Whiteness” as a pejorative. Instruction of that type seems to offend the principles laid out in SFFA.

At some point, legal questions dissolve into policy disputes that are not appropriate for litigation. “May a high school require history teachers to assign ‘anti-racist’ readings?” is importantly distinct from the question of whether it should do so. However, the fundamental issue that SFFA and 303 Creative address, whether students can be separated into racial affinity groups in order to study such readings, seems more clearly unconstitutional.

The decisions in SFFA and 303 Creative bring clarity where any questions about racial classifications or compelled speech might have lingered. The ball is now in the court of the educational institutions—both public schools, which are bound by the Constitution, and any other schools receiving federal funding, which are subject to the same standards under Title VI of the Civil Rights Act.  

A year after the Supreme Court held, in Brown v. Board, that racial segregation in public schools is unconstitutional, the case returned to the Court on the issue of remedies. At that time, the Court directed public schools to desegregate “with all deliberate speed.”  Even after that directive, desegregation litigation carried on for decades. Today, it remains to be seen whether schools will incorporate the holdings in SFFA and 303 Creative more speedily or more deliberately. Time will tell, and school attorneys are watching.

The opinions expressed here do not necessarily reflect those of the Foundation Against Intolerance & Racism or its employees.

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