Reflection: An Examination of the Supreme Court’s Race-Conscious Admissions Ban

By: Virginia Saylor

October 23, 2023

Earlier this month, a faculty panel[1] led our law school in a robust discussion on the future of law school admissions in the wake of the Supreme Court’s decision this past June concerning race-conscious admissions programs at Harvard and the University of North Carolina.[2] In reaching their decision, the Court’s conservative supermajority reversed decades of precedent and invalidated both programs, holding that race can no longer be used as an admissions factor.[3]

Chief Justice Roberts, writing for the court, remarked: “[m]any universities have for too long . . . concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned, but the color of their skin . . . [and] [o]ur constitutional history does not tolerate that choice.”[4] That is, the majority “return[s] to the traditional rule that the Equal Protection Clause forbids the use of race in distinguishing between persons unless strict scrutiny’s demanding standards can be met.”[5]

Racial classifications are inherently suspect under strict scrutiny, and therefore must be narrowly tailored and further a compelling government interest to pass muster.[6] Here, the Court held that both policies—which employed racial categories—were insufficiently narrow under strict scrutiny because they were immeasurable, imprecise, and overbroad.[7] That is, as Professor Baxter summarized, race as a factor in admissions—or at least as it was used at both Harvard and UNC—does not survive strict scrutiny.

So, where does this leave us? What can universities and colleges do to ensure that our admissions procedures do not, as Justice Sonia Sotomayor warns, subvert the constitutional guarantee of equal protection by further entrenching racial inequality in education?[8] Specifically, what can the University of Tennessee College of Law do, where racism and cowardice are still something of a recent history?[9] And finally, what can we do—as students, as professionals, and as aspiring lawyers—to make sure our admissions procedures do not indeed become colorblind.[10]

In the wake of this decision, universities and colleges across the country have been charged to reframe their admissions procedures. Presidents of many colleges were quick to issue statements reaffirming their commitment to diversity despite the Court’s decision.[11] But, often in the aftermath of decisions like this, it is often easier to take a backseat; that is, to sit back and “let the people in charge handle it.” It is for this exact reason I decided to put some of my reflections down today.

As former President Obama stated, affirmative action “allowed generations of students like Michelle and me to prove we belong. Now, it’s up to all of us to give young people the opportunities they deserve—and help students everywhere benefit from new perspectives.”[12] Echoing Obama’s sentiments, I believe we all have a part to play, even if we are not ultimately charged with decision making authority.

Upon reflection, I am confident in saying that there is neither a simple, nor a singular solution—and I certainly don’t have the answers. But what I do know is this: if I were still a teacher, I would talk to my students;[13] and if I were a parent, I would talk to my children. However, as a law student and aspiring lawyer, I can still do my part to solicit meaningful conversation and be bold in the questions I ask, and in my role as Editor-in-Chief of the Tennessee Law Review, courageous in the scholarship we publish.

While this decision has left me with an overwhelming sense of despondence—knowing that my former students (who will be entering high school next year) will be harmed by the Court’s decision, and that diversity in classrooms across the U.S. will decline—I  know that we will find a way to be clever. That is, we can maintain our commitment to promoting diverse classrooms within the bounds of federal law.

So, as the faculty panel suggested in closing, the challenge is this: design an admissions scheme that continues to attract racially diverse students, but that also survives strict scrutiny. I think we’re up for the challenge—after all, “deeming race irrelevant in law does not make it so in life.”[14]

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[1] The panel was comprised of Professor Alex Long, Professor Terri Baxter, and Professor Benjamin Barton.

[2] Students for Fair Admissions, Inc. v. President and Fellows of Harvard Coll., 143 S. Ct. 2141 (2023). 

[3] Id. at 2175.

[4] Id. at 2176.

[5] Id. at 2219.

[6] Id. at 2221 (citing Grutter v. Bollinger, 539 U. S. 306, 326-27 (2003)).

[7] Id. at 2245 (Sotomayor, J., dissenting).

[8] Id. at 2247 (Sotomayor, J., dissenting).

[9] See Briana Rosenbaum, Deflect, Delay, Deny: A Case Study of Segregation by Law School Faculty, 90 Tenn. L. Rev. 1 (2022) (discussing the not so distant history of segregation in the University of Tennessee College of Law and the role that individual faculty members played in the perpetuation of segregated legal education by a system designed to intentionally deny black applicants based on technicalities); see also Bryce Bradley, Deflect, Delay, Deny: A Case Study of Segregation by Law School Faculty Before Brown v. Board of Education, Tenn. L. Rev. Blog (Apr. 12, 2023), https://tennesseelawreview.org/blog/ (reflecting on her own experience as a black student at the University of Tennessee College of Law, and the obstacles that stand in the way of hopeful diverse law students).

[10] Students for Fair Admissions, Inc., 143 S. Ct. at 2277 (Jackson, J., dissenting) (“with let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces, ‘colorblindness for all’ by legal fiat.”).

[11] See Nina Totenberg, Supreme Court Guts Affirmative Action, Effectively Ending Race-Conscious Admissions, NPR (June 29, 2023, 7:52 PM), https://www.npr.org/2023/06/29/1181138066/affirmative-action-supreme-court-decision.

[12] Mark Sherman, Divided Supreme Court Outlaws Affirmative Action in College Admissions, Says Race Can’t Be Used, AP News (June 29, 2023, 10:10 AM), https://apnews.com/article/supreme-court-affirmative-action-college-race-f83d6318017ec9b9029b12ee2256e744.

[13] As a matter of background, after graduating from college, I taught for two and a half years in a Title I school located in Charlotte, North Carolina where the majority of my students were black and people of color.

[14] Students for Fair Admissions, Inc., 143 S. Ct. at 2277 (Jackson, J., dissenting).