Don’t misread SFFA v. Harvard (opinion)

Twenty years ago, the Supreme Court upheld the University of Michigan Law School’s affirmative action policy in the Grutter case. I served as dean of the law school when we applied and defended that policy.

The decision in the Students for Fair Admission case did not overrule Grutter. Instead, the majority opinion declared that Harvard University and the University of North Carolina had policies that were meaningfully different from both Michigan’s policy and the University of Texas policy that was upheld 10 years later in the Fisher case.

The Michigan and Texas policies described their objectives in similar ways: they were preparing all their students to be effective contributors to a racially integrated society. That meant breaking down whatever racial stereotypes students brought with them to college.

Racial stereotypes presume that people of the same race are all the same; stereotypes about Black students break down when students from other races see Black students disagreeing with one another. That only happens when the number of Black classmates adds up to a critical mass. If, for example, there is only one Black student in a class of 30, it is almost inevitable that they will be perceived as a spokesperson for their race. The dynamics change when several Black classmates are in the room, disagreeing with one another.

Both the Michigan and Texas policies explicitly recognized the benefits all students would experience if their classes included critical masses of classmates from different groups. Those benefits were important but did not override all other elements of the admissions judgment. An individual applicant’s potential contributions to the breakdown of racial stereotypes was treated as a “plus factor,” comparable to other plus factors such as experience living abroad or accomplishment as an artist.

The majority opinion in SFFA did not renounce the earlier decisions’ recognition that universities have a compelling interest in providing such an environment. Rather, it noted that “neither Harvard nor UNC claims to be using the critical mass concept.” Instead of being designed in the manner of Michigan and Texas to break down racial stereotypes, the majority concluded that Harvard and UNC were reinforcing them.

Is it possible to design new affirmative action policies that satisfy the SFFA standards? Justice Thomas’s concurrence and Justice Sotomayor’s dissent suggest no, but there is force to the majority’s observation that “a dissent­ing opinion is generally not the best source of legal advice on how to comply with the majority opinion.”

It will not be easy to design affirmative action policies that comply with SFFA, but it should not be impossible. Indeed, I expect that many universities are already in compliance. What is required? As I see it, only five things.

First, the university must have a mission that includes preparing students to be effective members of a racially integrated society.

Second, the university must have analyzed whether it needs to take affirmative action to create a student body where students’ preconceptions and stereotypes are broken down, or whether such a student body will just emerge effortlessly.

Third, if it concludes that such action needs to be taken, the university must have an admissions policy that clearly explains how an individual applicant’s contribution to the breakdown of stereotypes might be a plus factor comparable to other plus factors within their file. Importantly, applicants of any race should be able to show how they might be able to break down other students’ stereotypes.

Fourth, the admissions policy must have a clear expiration date, at which time the university must undertake a full good-faith review that measures how well stereotypes are being broken down and determines on that basis whether the policy should be revised.

And fifth, the university must be committed to walking the walk. It must operate as a racially integrated community where stereotypes are broken down through continuous intellectual engagement and respectful disagreement, where people are appreciated as individuals who have complex and multidimensional identities.

America’s goal of building a racially integrated society where all individuals are treated fairly and with equal respect is as important today as it was 20 years ago. It is a goal that all Americans can embrace. And it is a goal that will remain important 20 years from now.

That goal may never be fully attainable. It may, like the horizon, be always just beyond our reach. But it marks the direction toward which we should continue to move, to the best of our abilities.