University joins group of Catholic schools in favor of race-based admissions
Notre Dame joined an amicus curiae brief in favor of the practice of affirmative action in admissions, as two key cases on the issue are about to be decided during the Supreme Court’s October Term.
The two cases, Students for Fair Admissions (SSFA) v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina, were argued together and will decide the extent to which universities can use race as a factor in college admissions.
SSFA alleges that Harvard and UNC systematically discriminate against Asian students in the admissions process. Notre Dame and fifty-six other Catholic universities and colleges filed an amicus curiae brief in order to “provide the Court with their unique perspective as to why both their academic and religious missions require discretion to consider applicants’ racial identities alongside a variety of other factors in admissions decisions,” and so they “respectfully urge the Court to affirm the judgment below.”
If the Court were to affirm the judgment as urged by the schools, Harvard and UNC would be free to continue to consider race in college admissions. On the other hand, if the Court overturns one or both of the circuit court decisions SSFA is appealing, schools all over the country will have to change their admissions processes to become race-neutral.
There is one key difference between the two cases: Since UNC is a public school, it is bound by the Fourteenth Amendment’s Equal Protection Clause, whereas Harvard as a private school is only bound by Title VI of the 1964 Civil Rights Act. This difference means that, in theory, the Court could rule against UNC but in favor of Harvard and thus require public schools to implement race-blind admissions but continue to allow private schools to consider race.
However, the current framework which the Court laid out in Grutter v. Bollinger (2003) makes no distinction between public and private schools. In that case, the Court held that “student body diversity is a compelling state interest that can justify the use of race in university admissions,” but simultaneously that all candidates must be in competition with all other candidates for admission.
In other words, since there cannot be a separate admissions process for students of different races, race must be used only as one positive factor among many other elements of an application. But, SSFA argues, if being one race is a positive factor, surely being some other race has a negative effect on an application.
Further, SSFA contends that Harvard and UNC are not even adhering to the framework of Grutter. As they say in their original brief against Harvard: “Each year, Harvard admits and enrolls essentially the same percentage of African Americans, Hispanics, whites, and Asian Americans even though the application rates and qualifications for each racial group have undergone significant changes over time. … Harvard’s remarkably stable admissions and enrollment figures over time are the deliberate result of systemwide intentional racial discrimination designed to achieve a predetermined racial balance of its student body.”
Essentially, SSFA claims that, since Harvard is holding the racial makeup of the university constant from year-to-year, there is no way that Asian students can be competing against anyone but other Asian students.
The judgments below in the First and Fourth Circuits affirmed the decisions of the two original bench trials between SSFA and both Harvard and UNC, which found that their admissions schemes complied with the requirements of Grutter. In order for the Supreme Court to reverse either of those lower decisions, they would either have to find that the reasoning below was faulty and remand the case, or they could overturn Grutter and promulgate a new test for determining how—or if—the use of race in admissions is legal.
However, as recently as the 2016 case Fisher v. University of Texas, the Court held 4–3 that UT could consider race in admissions. But Justice Gorsuch had not yet been confirmed to the Court following Justice Scalia’s death, and Justices Kavanaugh and Barrett had not yet replaced now-retired Justices Kennedy and Ginsburg.
The brief from Notre Dame and other Catholic schools is unlikely to make much difference one way or the other. It came up once in oral arguments, when Justice Kavanaugh asked the advocate for SSFA whether he thought Catholic schools might have a religious freedom right to continue using race. He responded, “There may be difficult questions there, but I think that in this case, there’s no suggestion that RFRA [the Religious Freedom Restoration Act] has any role to play, and we think the Equal Protection Clause dominates.” In saying this, Justice Kavanaugh suggests that the RFRA cannot override the Equal Protection Clause of the Fourteenth Amendment. So, Catholic schools would still have to comply with neutrally-applicable laws like a ban on considering race.
Court decisions can be released at any time between now and the end of the term in late June. But generally the most controversial cases are released as late as possible, so that the majority opinion and any dissents can be as well-polished as possible to provide the clearest guidance to lower courts and the public. Accordingly, the public likely will not know the Court’s decision for several more months.
Given the significant ramifications of these cases, some Notre Dame students were disappointed to see Notre Dame join an amicus curiae brief in support of continuing to use racial factors in admissions. Sophomore Danny Martin remarked, “It’s disappointing to see the university cling to outmoded forms of racial discrimination.”
Senior Mia Tiwana, who serves as the Layout Manager of the Irish Rover, also was frustrated by Notre Dame’s support for affirmative action in admissions: “As a woman of color at Notre Dame who has faced the drawbacks of a campus that is not as diverse as I hoped, and as a minority who has been a leader in both conservative and progressive circles on campus, I wish the university was more intentional about the ways it tries to support diverse voices. To me, affirmative action symbolizes that I have nothing but the color of my skin to give to the university. I would much rather Notre Dame seek to elevate minority voices by highlighting the unique things they have to offer personally, instead of treating racial status as a category that simply boosts one’s chances for admission.”
Will Grannis is a sophomore honors mathematics and theology major. When he’s not doing math homework or having heated debates with his friends, he can be reached at wgrannis@nd.edu.
Photo credit: Supreme Court Building, from Creative Commons by Mark Fisher
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