Trump (Rightly) Buttresses SCOTUS Ruling Against Racial Preferences

Trump’s crackdown on affirmative action in higher education has a lesson to teach about the interplay between law and politics.

Harvard Yard (photo by David Lat). My undergraduate alma mater has many positive qualities, but it won’t win any campus beauty contests.

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Two years ago, the U.S. Supreme Court issued its landmark ruling in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (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 Fourteenth Amendment.¹

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.”²

Would colleges use that leeway to get around the core of the court’s ruling? Professor Brian Fitzpatrick of Vanderbilt Law, 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 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 or threatening 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, Columbia, and the University of Pennsylvania all cut deals with the administration in the past month or so, with others expected to follow.³

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 August 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.

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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.⁴

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 U.S. 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 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.

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A version of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and is reproduced here with permission. The footnotes, which contain material that did not appear in the Bloomberg Law version of the piece, are a form of “bonus content” for Original Jurisdiction subscribers.

1. For my detailed views on racial preferences, see my November 2022 story, which I published after the oral arguments in SFFA (but before the June 2023 decision).

When referring to the practice of “giving a candidate a plus or a minus based on nothing more than their race,” I prefer to use the term “racial preferences” rather than “affirmative action.” As I explained in the first footnote of my 2022 column, “I have no problem with ‘affirmative action’ in the form of, say, reaching out to different communities and encouraging their members to apply, in order to enlarge and diversify the applicant pool. That’s what affirmative action should really be about.”

2. Some opponents of racial preferences expressed the concern that this language could be misused by universities to bring back racial preferences on the sly. While I understand this fear, I believe the Chief’s language was necessary and appropriate, at least for schools employing so-called “holistic” admissions (as opposed to processes based simply on an entrance exam, such as those used by New York City high schools like Stuyvesant and Bronx Science).

Imagine a Black applicant applying to college who overcome significant racial discrimination on the way to outstanding academic and extracurricular achievement. This applicant should receive a “bump up”—not because they’re Black, but because of what they managed to accomplish in light of the obstacles they faced.

Then imagine applicants like our two sons (referenced in my earlier post—although back in 2022, Zach and I had only one child). Our kids are part-Black and part-Latino (thanks to their egg donor), so they could, in good conscience, check the relevant boxes on their college applications. But they are also growing up very privileged, and they have not yet, to my knowledge, faced any significant racial discrimination.

I don’t believe applicants like our kids should get a “plus” in the admissions process—and certainly not an advantage over any white or Asian applicants who grew up in poverty or other conditions of adversity. That seems, quite frankly, perverse.

3. We can definitely have a conversation about whether the ends justify the means. I don’t have a problem with the Trump administration (1) investigating schools where there’s evidence of possible use of racial preferences in admissions, and (2) entering into settlements with those schools, in which the schools promise not to use such preferences going forward. I’m less comfortable with taking steps like cutting off federal funding for, say, scientific research programs at universities, in the absence of evidence that the specific programs were engaged in unlawful discrimination themselves. But I also understand the counterargument: to deal with deeply entrenched problems, sometimes you need strong medicine.

4. I believe that elimination of racial preferences should be part of a broader reform of admissions in higher education—in which preferences for legacies, recruited athletes, and children of major donors are also eliminated. Importantly, the evidence in the Harvard case showed that getting rid of all these preferences, plus replacing racial preferences with an enhanced preference for low socioeconomic class, could maintain racial and ethnic diversity in a race-neutral way. I have yet to hear a persuasive argument against replacing racial with socioeconomic preference (which would benefit many, but not all, candidates from so-called “underrepresented minority groups”).

But in the absence of comprehensive admissions reform, I’ll take the half-loaf of eliminating racial preferences. If schools find that junking racial preferences leads to demographic changes in their student bodies that they don’t like, such as too few Black or Hispanic students, that might move them to get rid of other preferences—such as alumni and donor preferences, which disproportionately benefit white applicants from wealthy backgrounds.

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