The Supreme Court’s June decision striking down race-conscious admissions may have been the most significant higher ed case in years, providing a concrete answer to questions that have spurred dozens of court cases since the 1990s. But it hardly put an end to the legal fight over affirmative action.
In fact, the outcome has unleashed a stream of new challenges to colleges’ race-conscious policies and revived cases that had been dismissed or lost before the ruling was handed down.
Just yesterday, Students for Fair Admissions, the group that spearheaded the Supreme Court cases against Harvard University and the University of North Carolina, filed a lawsuit challenging the race-conscious admissions policies of the U.S. Military Academy at West Point.
New legal challenges emerge
SFFA began building the case after the Supreme Court left open the possibility that military colleges could be exempt from the affirmative action ruling due to their “potentially distinct interests” in enrolling racially diverse student bodies.
The organization is also in the process of revisiting lawsuits that were stayed pending the outcome of the Harvard and UNC cases.
One of those, against Yale University, was dropped last week after the two parties reached an agreement that included promises of significant admissions policy changes from Yale; the other, against the University of Texas at Austin, is up in the air while the university and SFFA try to negotiate a settlement.
Other groups are also piggybacking on SFFA’s victory. Yesterday the conservative law firm Equal Protection Project filed a complaint with the Education Department’s Office for Civil Rights against Western Kentucky University over two scholarships the WKU Athletics Minority Fellowship and the WKU Distinguished Minority Fellowship available only to students of color.
Last month the same organization filed a complaint against the University of Nebraska at Lincoln over a residency program for Black filmmakers that the university hosts in partnership with a local nonprofit.
William Jacobson, EPP’s founding director and a law professor at Cornell University, said colleges should expect to be held accountable for complying with the ruling.
“I don’t view the Supreme Court ruling with the narrow focus of affirmative action in admissions, or even affirmative action in general; it’s an equal protection decision,” he said. “It would certainly be in colleges’ best interest to change their policies now if they aren’t already compliant … Whatever the challenges were that failed before the decision, if those practices are ongoing, I don’t see why they can’t be challenged anew.”
Stacy Hawkins, a Rutgers University law professor whose work focuses on the intersection of diversity and jurisprudence, said despite the June 29 Supreme Court ruling, the outcomes of the subsequent legal challenges are by no means predetermined.
And while the battle over race-conscious admissions may be over, she said, the ensuing skirmishes are key to determining the decision’s reach.
“Universities are going to have all sorts of different levels of risk tolerance associated with these cases as they come in, and Yale certainly took a very conservative posture,” she said. “But that’s important, because we will effectively continue to litigate the contours of admissions practices until we have some clear understanding of what the Supreme Court actually intends.”
