Finding the cloud in every silver lining can take the well-deserved joy out of victories. Is something like this happening in the conservative reaction to the Supreme Court’s Students for Fair Admissions decision, which struck down racial preferences in higher ed? A fair number of conservatives whom I greatly respect (including my client in an amicus brief in the case) have focused on a line at the end of Chief Justice John Roberts’s opinion for the 6–3 majority to warn of “a very large loophole” that colleges will “drive an affirmative action truck right through.”
“Nothing in this opinion,” Roberts wrote, “should be construed as prohibiting universities from considering an applicant’s discussion [in an admissions essay] of how race affected his or her life.” Yet Roberts added in the very next sentence that “universities may not simply establish through application essays or other means the regime we hold unlawful today,” that “a benefit to a student who overcame racial discrimination . . . must be tied to that student’s courage and determination” or “that student’s unique ability to contribute to the university,” and that “the student must be treated based on his or her experiences as an individual—not on the basis of race.”
The initial concern that the chief justice had carved out a loophole may have been understandable. Colleges immediately seized on the reference to essays to hint at defiance. Before the ink was dry, Harvard sent out an email quoting the line about essays and adding, with palpable sarcasm, “We will certainly comply with the Court’s decision.” Other elite schools quickly weighed in in the same vein.
But if the colleges felt sanguine, the dissenting justices didn’t. In her principal dissent for the three justices in the minority, Justice Sonia Sotomayor ridiculed the “supposed recognition that universities can, in some situations, consider race in application essays” as “an attempt to put lipstick on a pig” that in no way countered the Court’s “meticulous[] gutting” of “universities’ ability to consider race in any form.”
The oral argument of the case last October supports Sotomayor’s take that the “loophole” is no loophole. As Roberts notes at the outset of the paragraph about essays at the end of his decision, “all parties agree[d]” that a ban on consideration of race per se could not preclude colleges from considering students’ discussion of the impact of discrimination, or of their heritage and culture, on their lives. Indeed, lawyers for Students for Fair Admissions acknowledged as much, stressing in response to questions from the Court that “[w]hat we object to is a consideration of race . . . by itself” and that “culture, tradition, heritage are . . . not off limits” so long as this is not merely a pretext for handing out points by race. As SFFA lawyer Cameron Norris put it, presaging almost to the word the distinction later made by Roberts in the opinion, colleges “need to credit something unique and individual in what [the student] actually wrote, not race itself.” A test of this, he pointedly noted, would be whether a school gives “equal credit” to a black student and an Asian student who write comparable essays “about overcoming discrimination.”
Of course, these are subjective measures vulnerable to abuse. But so is any measure other than standardized test scores. And Roberts showed that he was well aware of the danger, and determined to guard against it, when he noted at the argument that “if all of a sudden the number of essays that talk about the experience of being an African American in society rises dramatically” it would suggest that race was still being “taken into account automatically.” His opinion circumscribes this danger about as tightly as SFFA could have asked, making it difficult even for liberal judges to find in favor of any college that tries to use essay answers as a proxy for “race itself.”
The bottom line is that the concession on essays was “unavoidable,” as conservative legal commentator Ed Whelan put it. “There’s no way that the Court can say you can never mention race in any context, because as long as there are essays the topic may come up,” notes blogger and preferences opponent Richard Hanania. In fact, the claim that striking down racial preferences could bar students from even writing about their heritage in their applications—that they could talk about the impact of illness but not discrimination, or their role in the school play but not in an ethnic organization—was the only sympathetic legal and political argument that Harvard and its co-defendant the University of North Carolina made. Legally, it raised issues of viewpoint discrimination, as Justice Amy Coney Barrett noted at argument. Politically, it seemed unfair. It had to be blunted.
Chief Justice Roberts delivered as strong an opinion as possible for the coming battles. My amicus client, Peter Wood of the National Association of Scholars, says that while “the Court’s ruling breathes new life into the rule of law in higher education,” he’s “not ready to pop the cork in the champagne bottle” yet. I think we’re entitled to one glass, with a toast to the Chief Justice—my treat.
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