Two years ago, the US Supreme Court issued its landmark ruling in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, or SFFA. The court held that the affirmative action programs at Harvard University and the University of North Carolina—by providing certain applicants with “an inherent benefit” tied to “race qua race,” or “race for race’s sake”—violated the Equal Protection Clause of the 14th Amendment.
The SFFA court didn’t prohibit all consideration of race in admissions. On behalf of the six conservative justices, Chief Justice John Roberts wrote that universities remained free to consider “an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”
Would colleges use that leeway to get around the core of the court’s ruling? Vanderbilt law professor Brian Fitzpatrick, a prominent opponent of racial preferences in college admissions, predicted that some schools would “try to drive a truck through that little paragraph”—and that “they probably will succeed.”
But Fitzpatrick made that prediction in 2023—before President Donald Trump’s return to the White House. And based on what Trump has done so far in his second term, it will be a lot harder for schools to defy the Supreme Court.
By cutting off federal funding for their research and launching a flurry of investigations against them, the Trump administration has brought enormous pressure to bear against elite universities. This has driven schools to the bargaining table: Brown University, Columbia University, and the University of Pennsylvania all cut deals with the administration in the past month or so, with others expected to follow.
In their settlements, Brown and Columbia agreed to “maintain merit-based admissions policies,” promising that they wouldn’t, “by any means, preference applicants based on race, color, or national origin in admissions.” They committed to not using “personal statements, diversity narratives, or any applicant reference to racial identity as a means to introduce or justify discrimination,” acknowledging that “[n]o proxy for racial admission will be tolerated.”
Both universities also promised to provide the federal government with admissions data “showing applicants, admitted students, and enrolled students broken down by race, color, grade point average, and performance on standardized tests.” This is hugely significant—and will make it very difficult for the schools to evade the Supreme Court’s ruling in the SFFA case.
How? The data will show differences in GPAs and standardized-test scores across different racial groups. Excessively large gaps would suggest that the schools are continuing to bestow race-based preferences, contrary to merit-based admissions. This would likely lead to investigations by the federal government into unlawful racial discrimination, lawsuits by private parties alleging illegal racial preferences, or both.
And disclosure of such data won’t be limited to Brown and Columbia. On Aug. 7, Trump signed a presidential memorandum, “Ensuring Transparency in Higher Education Admissions,” requiring this type of admissions data from all colleges or universities that receive federal financial assistance—which is, as a practical matter, pretty much every major institution of higher learning.
Some differences in GPAs and test scores across racial groups could be consistent with merit-based admissions. Although the Supreme Court in SFFA prohibited consideration of “race qua race,” schools can still weigh many other factors in evaluating applicants—such as overcoming poverty, recovering from adversity, or being the first person in one’s family to go to college. Some of these factors might correlate with race. But if gaps in statistical measures become too large, a school will have to defend itself from accusations that it’s employing unlawful racial preferences.
In a footnote to the SFFA opinion, Roberts stated that the court’s holding didn’t cover military academies such as West Point and the US Air Force Academy, “in light of [their] potentially distinct interests.” But in a settlement executed on Monday to resolve litigation brought against the military academies by SFFA, the Trump administration pledged that West Point and the Air Force Academy would no longer consider applicants’ race in admissions decisions.
What’s the takeaway from all of this? Supreme Court rulings aren’t issued in a vacuum. The significance and implications of a decision by the high court aren’t fixed. Rather, the impact that a judicial ruling will have on the ground depends on many different factors, including how the executive and legislative branches respond to that ruling.
When the Supreme Court issued its SFFA opinion in June 2023, how consequential it would be was unclear. Imagine Kamala Harris had won the 2024 presidential election. A Harris administration might have looked the other way if schools tried to circumvent that decision—or might even have tried to reduce its impact.
Instead, Donald Trump won the 2024 election. And his administration is acting to ensure that colleges and universities comply with the Supreme Court’s ruling in the SFFA case.
The Trump administration has taken a whirlwind of actions over the last six months, on many different fronts. Views of its various policies will run the gamut. For those of us who are opposed to, or at least uncomfortable with, racial preferences, the administration’s commitment to colorblindness in college admissions is commendable.
David Lat, a lawyer turned writer, publishes Original Jurisdiction. He founded Above the Law and Underneath Their Robes, and is author of the novel “Supreme Ambitions.”
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