There has been major controversy and uncertainty in higher education circles about the future of considering race on campuses. After every major Supreme Court decision, opponents will seek to minimize the ruling, while supporters will seek to expand it. So, the rules have not been clear.
The day the Supreme Court decided Students for Fair Admissions, Inc. v. Presidents and Fellows of Harvard College (600 U.S. 181 (2023) (SFFA), the Biden White House issued a statement entitled, “FACT SHEET: President Biden Announces Actions to Promote Educational Opportunity and Diversity in Colleges and Universities,” which began:
Today, the Supreme Court upended decades of precedent that enabled America’s colleges and universities to build vibrant diverse environments where students are prepared to lead and learn from one another. Although the Court’s decision threatens to move the country backwards, the Biden-Harris Administration will fight to preserve the hard-earned progress we have made to advance racial equity and civil rights and expand educational opportunity for all Americans.
A month later, the Biden Department of Justice Civil Rights Division and the Department of Education (ED) Office for Civil Rights (OCR) issued a joint “Dear Colleague” letter (DCL) which stated that SFFA “directly addressed only the universities’ admissions programs.”
But upon assuming office, President Trump issued Executive Order (EO) “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” overturning Biden’s inaugural day EO on “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.” The two EOs are totally different in their policy and programmatic goals.
On February 14, 2025, the Trump OCR issued its own DCL focusing on racial discrimination in higher education. Reasonable questions can be raised about whether such administrative instructions should conform to the Administrative Procedure Act mandating a long period of public comments and other requirements. Trump’s DCL also addressed “diversity, equity, and inclusion” (DEI) curricular and research programs, which might raise First Amendment issues depending on what was actually enjoined.
On February 28, 2025, however, OCR issued “Frequently Asked Questions about Racial Preferences and Stereotypes under Title VI of the Civil Rights Act.” Question 9’s answer specifically states that various laws prohibit the ED from “exercising control over the content of school curricula” and that the OCR will “enforce civil rights law consistent with the First Amendment.” Consequently, on March 14, a unanimous Fourth Circuit Court of Appeals opinion endorsed the abstract concept of DEI but refused to halt the Trump initiatives until there was evidence of illegal implementation. (National Association of Diversity Officers in Higher Education et.al v, Donald J. Trump et.al).
The teeth of the earlier DCL letter, however, are focused squarely on racial discrimination:
Although SFFA addressed admissions decisions, the Supreme Court’s holding applies more broadly. At its core, the test is simple: If an educational institution treats a person of one race differently than it treats another person because of that person’s race, the educational institution violates the law. Federal law thus prohibits covered entities from using race in decisions pertaining to admissions, hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life. Put simply, educational institutions may neither separate or segregate students based on race, nor distribute benefits or burdens based on race.
Those who argue SFFA is only about admission preferences are engaged in wishful thinking or massive deception.
The DCL letter created an intense backlash. Todd Wolfson, President of the American Association of University Professors (AAUP), declared: “I would stand with every inch of my soul against every one of these intrusions and bring all my members with me and put our bodies on the line to stop it.” The AAUP and the American Sociological Association began litigation challenging the letter. University of Michigan Professor Charles H. F. Davis III stated starkly “You can’t negotiate with fascism. It’s give an inch, they take a mile sort of situation.” Another IHE opinion piece by Stanford Professor Subini Annamma and University of Illinois Chicago Professor David Stovall was titled “Colleges must stand up to the new segregationists.” The essay, ignoring the actual DCL text, argued that “Students of color, trans, queer and nonbinary students, disabled students, and undocumented students have the right to access the resources of the university.”
In a February 18, 2025 Chronicle for Higher Education article, “Hitting Pause on the ‘Dear Colleague’ Letter,” University of Texas at Austin professor Lillian Garces focused more narrowly on legal issues. She argued that the DCL “widely expands, without any legal authority,” the parameters of SFFA.
[RELATED: The Naval Academy Should Jettison Race-Conscious Admissions Policies]
Even if that were true, Title VI (federally funded institutions) and VII (employment) of the Civil Rights Act are important statutory authorities for the Trump DCL. Expanding the legal lens, however, shows the OCR race preference admonitions stand on solid constitutional grounds. In 2023, the Supreme Court decided SFFA. The majority opinion affirms eight specific principles; some new and others just more forcefully articulated that apply to many policy areas. (1) when governments use racial classifications, the judicial review standard is strict scrutiny, which requires the establishment of a compelling interest and narrowly tailored in their use (at 206); (2) the Equal Protection Clause applies “without any differences of race, color or nationality.” It is universal in [its] application (at 206); (3) race may not be used as a policy tool unless it is to remedy for a Constitutional or statutory violation (at 207); (4) racial policies must have an end point (at 212); (5) race should not be used as a negative or as a stereotype (at 211-13, 218-21); (6) the current racial and ethnic clusters used as policy tools are invalid (at 216); (7) using race to achieve proportional representation is unconstitutional (at 223); and (8) societal discrimination past or present is not a predicate for contemporary racial preferences (at 226-227).
Those who argue SFFA is only about admission preferences are engaged in wishful thinking or massive deception. The eight SSFA principles are Constitutional planks that support a broad framework of equal protection law applicable wherever race is involved; a phalanx of litigating agencies such as the American Alliance For Equal Rights, America First Legal, California Foundation for Equal Rights, Center for Individual Rights, Mountain States Legal Foundation, Pacific Legal Foundation, Southeastern Legal Foundation, and Wisconsin Institute for Law and Liberty represent plaintiffs pro bono. As a result of their efforts, race preferences have fallen in cases involving scholarships and internships, public contracting, housing and land subsides, and public board memberships, as I previously explained in “The Widening Effect of Students for Fair Admissions.”
The new DCL stands on SFFA’s ever-expanding legal foundation. There are still hundreds of targets, but our nation is moving closer to fulfilling Chief Justice Robert’s SFFA admonition: “Eliminating discrimination means eliminating all of it.”
Image: “Students for Fair Admissions Rally” by Whoisjohngalt on Wikimedia Commons
I am againt racial preferences.
But I’ll be darned if I really know what Equal Protection really means.