A Call to Counter Repressive Legalism: Addressing the Implications of SFFA v. Harvard

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• A Call to Counter Repressive Legalism:Addressing the Implications of SFFA v. Harvard
• Nicole C. Ngaosi (bio) and Liliana M. Garces (bio)

Opponents of race-based affirmative action in higher education have challenged the policy and practice since its inception. The sustained opposition resulted in a series of legal cases that have substantially chipped away at the practice, resulting in what is now termed "race-conscious" admissions (Garces, 2019). After nearly half a century of legal cases endorsing the consideration of race as one of many factors in the admissions process, on June 29, 2023, the U.S. Supreme Court in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. the University of North Carolina-Chapel Hill further restricted how race can be considered in admissions processes. Specifically, the Court concluded that outside of military academies, the constitution and federal law generally prohibit the consideration of race in admissions, except for the individualized review of how race is related to an applicant's lived experience.

The implications of the Court's decision are significant for racially minoritized students who often have steeper, uphill climbs in their educational opportunities compared to their white peers. Yet, as saddened as many scholars and practitioners in the higher education community are to have the consideration of race in admissions further restricted, this Court ruling was a possible outcome given the sustained opposition to the practice and the U.S. Supreme Court's new conservative majority.

In this commentary, we provide a brief overview of the legal evolution of affirmative action in admissions over the past four decades leading up to the Court's most recent SFFA cases. We outline some of the developments in the aftermath of this most recent decision that seek to further restrict and unnecessarily suppress the consideration of race in educational practice—a dynamic termed repressive legalism. We argue that the SFFA decision can result in further retrenchment, given the sustained attacks and ongoing pressures targeting racial equity. This sociopolitical environment requires higher education administrators and student affairs practitioners to proactively counter repressive legalism by leveraging legal strategies to reassert racial equity in institutional policies and practices.

LEGAL EVOLUTION OF RACE-CONSCIOUS ADMISSIONS

What is now broadly termed race-conscious admissions originated from a broader civil rights agenda—known as affirmative action—and various executive orders in the 1960s requiring nondiscrimination in employment and contracts. These executive orders sought to [End Page 331] codify equal opportunity as a means to address the effects of racial discrimination. While these executive orders did not address college enrollment demographics, many higher education institutions modeled this civil rights agenda by instituting admissions processes that guaranteed a certain number of spots to students from disadvantaged populations (Stulberg & Chen, 2013).

Yet, since its inception amid the civil rights movement in the 1960s, affirmative action has been the target of reoccurring legal challenges that have diluted its original intent (Fernandez & Garces, 2023). Starting in 1978, the Court's decision in Regents of the University of California v. Bakke (1978) prohibited the consideration of race in admissions via racial quotas as a way to remedy racial discrimination, permitting instead the consideration of race as one of many factors in a holistic process to achieve the educational benefits of a diverse student body. Four legal cases since—Grutter v. Bollinger (2003), Gratz v. Bollinger (2003), Fisher v. University of Texas I (2013), and Fisher v. University of Texas II (2016)—laid out the blueprint for colleges and universities to consider race as one of many factors in admissions decisions.

Undeterred by the Court's 2016 ruling in Fisher II upholding the constitutionality of race-conscious admissions, Ed Blum—the litigant who recruited Abigail Fisher in Fisher I and Fisher II and subsequently founded Students for Fair Admissions (SFFA)—continued his anti-civil rights campaign with a new set of lawsuits against Harvard and the University of North Carolina-Chapel Hill. When these new cases reached the Court in 2022, three Trump-appointed justices (Gorsuch in 2017, Kavanaugh in 2018, Coney-Barrett in 2020) had joined the Court. Their votes joined those of Roberts, Alito, and Thomas (all of whom...