Doctrinal Criticisms of the SFFA Decision

In his remarks, Prof. Wright contested the notion that the Constitution is color-blind, stating that this country has not done the work needed to make that happen.

Prof. Wright argued that the SFFA decision lacked any theory of history. The decision held that affirmative action failed the test of strict scrutiny because it did not have a logical endpoint, referencing the expectation in Grutter that affirmative action would no longer be needed 25 years after that decision was handed down. However, Prof. Wright contended, slavery did not end in 25 years, and it is unrealistic to expect that its repercussions could be addressed in such a short and arbitrary timeframe. It is further unrealistic to expect that the repercussions from the injustices that followed, during the Reconstruction and Jim Crow eras, could be addressed in the same 25 years, according to Prof. Wright. 

Prof. Wright also suggested that there may be First Amendment issues with the SFFA decision, given college and universities’ rights to choose what to teach, how to teach, and who to admit.

Potential Impact of the Decision

Prof. Wright urged the audience not to panic, and to focus on what the SFFA decision does and does not do. He emphasized that this is a decision regarding college admissions in particular, and that its requirement of color-blindness has not been extended to other DEI efforts, despite the aspirations of the proponents of the decision. However, he acknowledged that the text of the decision does leave room for the potential that its findings extend beyond college admissions, since the decision was rooted in the Equal Protection Clause and Title VI. 

Prof. Nunziato then briefly addressed several First Amendment issues related to the SFFA decision.  College counselors and other school employees may be restricted in how they can discuss race in jurisdictions with so-called anti-Critical Race Theory regulations, and these employees’ hesitance to talk about race with students may also affect the quality of the guidance that students in those jurisdictions are given. Prof. Nunziato noted that the Eleventh Circuit in the Honeyfund case recently struck down some of Florida’s anti-Critical Race Theory restrictions.

Prof. Wright expressed concern for the chilling effect that the SFFA decision may lead to, if students incorrectly believe that mentioning their race is illegal. He also addressed similar impacts that have been observed based on affirmative action bans that exist in certain states such as California, Michigan, New Hampshire, and Florida. Every one of these states where affirmative action had previously been banned experienced a decrease in minoritized participation in higher education. This is in part because such bans discourage subjective measures of merit and push schools towards more objective measures, like test scores and GPAs. Although minorities did not stop going to colleges and universities in those states, they went to less prestigious universities, which in turn leads to less recruitment from graduate programs and employers, and ultimately results in a less diverse group of leaders and employers in our society. 

On the flip side, Prof. Wright predicted that the SFFA decision may result in increased attendance at Historically Black Colleges and Universities (HBCUs) and other regional schools. 

What Can Be Done?

Prof. Simmons echoed Prof. Wright’s advice and also urged colleges and universities not to panic and not to overreact to the SFFA decision. He observed that this decision is the work of an existing machine looking to sue colleges and universities on their admissions criteria and practices, and worried that many announcements regarding changes in admissions criteria and practices are a means of signaling compliance with the wishes of that machine. He instead urged colleges and universities to consider what can still be done to encourage diverse students to apply.

Prof. Simmons highlighted the two approaches generally used to achieve a more diverse student body: (1) focusing on improving K-12 education, and (2) focusing on the discretion of colleges and universities to form a diverse class. Prof. Simmons noted that one piece that is often missed is the transition between the two, based on an assumption that quality applications from diverse students will arrive at the doors of colleges and universities without a focus on actually supporting students to make that happen. 

Prof. Simmons observed that colleges and universities have historically not done a good job at soliciting applications from diverse students. That gap has instead been filled by grassroots and other college access organizations. To do his part in filling that gap, in 1996, Prof. Simmons created the Simmons Memorial Foundation to make an impact on low-income students through SAT prep, application assistance, and the provision of general information on the benefits of college and how to apply. Prof. Simmons commended the guidance created by the Ethical Tech Initiative as both tangible and practical, and praised the potential of such guidance to put tools in the hands of impacted students.

The Guidance Created by the ADE Initiative

Ms. Fukuda spoke to her experience and frustrations of conveying the intersectionalities of her diversity in college essays, and how it inspired the creation of ADE after the SFFA decision. She observed that the decision imposed a heightened burden on students to justify their experience and identities. 

She noted that the burden to link race and ethnicity to an applicant’s characteristics exists among all of the other substantial constraints in a college application, including the requirement of brevity for the word count. She observed that the SFFA decision presupposes an incredible amount of self-awareness on the part of affected teenagers to recognize their experiences with race and articulate exactly how such experiences have shaped who they are.  ADE’s guidance aims to acknowledge these issues and guide students in preparing their college applications.

Ms. Fukuda also addressed some of the misconceptions voiced by high school students engaging in the application process. She emphasized, as set forth in the ADE student guide, that students can and should list leadership roles that suggest their race. She expressed her hope that communicating accurate information and combating the misinformation regarding best practices in college applications following the SFFA decision would mitigate the chilling effect among students of mentioning positive characteristics that are associated with race.

Prof. Wright then urged students not to censor themselves in writing their college applications. He emphasized that it is the school’s responsibility not to take an applicant’s race into consideration in ways that are inconsistent with the SFFA decision. Applicants should not overcorrect and try to remove parts of their application based on their own interpretation of the decision, especially where it could otherwise be beneficial to them to be left in. 

Conclusion: Going Forward

To help communicate the necessary information and guidance on a larger scale, ADE is aiming to utilize technology to inform students on how they can still incorporate discussions of their race and ethnicity in their college applications after the SFFA decision.  ADE is also exploring partnerships with guidance counselors, grassroots organization, and college access programs to help get this message across. As Prof. Nunziato observed, it is vital for the impact of the SFFA decision to be communicated in an accessible manner to the students that it affects. The SFFA decision is a complex legal opinion that is over 200 pages long, and the goal of ADE is to help high school students respond to the decision in a way that does not adversely affect students’ college application quality – and in a way that ultimately preserves and enhances diversity in higher education going forward.