The impact of the Supreme Court’s decision in Students for Fair Admissions, SFFA v. Harvard College and SFFA v. University of North Carolina, will stretch far beyond the freshman lecture hall.
While the 6-3 decision will certainly have a negative impact on undergraduate campuses, the Supreme Court decision to strike down race-conscious admissions practices in most colleges and universities will be felt in all aspects of industry and civil leadership. It will also have a serious negative impact on the legal profession. In a blistering dissent, Justice Sonia Sotomayor said, “the devastating impact of this decision cannot be overstated.”
As widely predicted, the ruling reversed 40 years of legal precedent that protected race-conscious admissions in higher education. Earlier decisions allowed schools to use race as one of many factors that college admissions officers could consider when conducting a holistic review of applicants. But last Thursday’s decision found that affirmative action in higher education violates the Constitution. The majority ruled that the admissions policies at Harvard and UNC violate the Equal Protection Clause of the 14th Amendment. Rather than protecting programs that advance equity in education and opportunities, the increasingly polarized Supreme Court has now banned them.
Olympia Duhart
The decision will harm diversity at the undergraduate level; in turn, it will also harm diversity of law school classes and other professional programs. By decreasing the number of Black and Brown students admitted to graduate schools across the country, the SFFA decision strips students of educational opportunities and blocks their path to professions and civil posts.
It will certainly shrink an already narrow pipeline for law school. The ruling undermines the progress that we have made toward an inclusive legal profession that reflects the nation’s diversity. And even that progress has been slow and stunted. The legal profession is already grappling with diversity.
While a 2022 survey by the American Bar Association found a growing number of women, Asian-American, Hispanics and mixed-race people in the legal profession, the number of Black lawyers remained stagnant. Even among groups experiencing growth, the numbers fall short of the US population demographics. Women are still underrepresented. Asians make up 5.5% of all lawyers. Black attorneys are underrepresented -- making up only 4.5% of practicing attorneys. Hispanics represented only 5.8% of all lawyers. Native Americans represented the smallest racial or ethnic group among lawyers; less than one percent of lawyers in the United States are Native American. In several important ways, the demographics of the legal profession fail to reflect the demographics of the population.
This failure will only be exacerbated by the SFFA ruling. As Justice Sotomayor has warned: “The Court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic and pluralistic society.”
While some affirmative action proponents have argued that the Court’s ban on affirmative action will mostly impact highly-selective elite schools, the fact is that this small group of schools play a significant gate-keeping function both in private businesses and government, and especially in law. Even the composition of the Supreme Court bears this out. Among the nine justices who issued the SFFA decision, eight attended Harvard or Yale law school. Even the lawyers most likely to argue before the Supreme Court remain white and male.
From 30,000 feet up, the Court imagined a world with no color considerations or race-based structural inequities. But here on the ground, college admissions officers and applicants are left to grapple with persistent structural inequities that plague education in the United States. Testing performance, access to Advanced Placement tests, likelihood of school suspension and other categorical inequities are marked along racial lines. These inequities translate to fewer students in the pipeline for law school. ABA data shows that only 19% of the nation’s lawyers are people of color – this is less than half of the total US minority population of 40%.
The lack of meaningful representation among lawyers impacts everything from charging decisions to cultural competency in dealing with diverse clients. As Boston University law dean Angela Onwuachi-Willig noted, the small pool of lawyers of color perpetuates a "cycle of inequality in all aspects of the justice system.”
While pipeline programs and recruitment at diverse colleges have played a role in increasing law school diversity, affirmative action has been cited as the critical component to helping law schools attract more students from diverse backgrounds. Now stripped of one of the most effective tools used to increase diversity, admissions officers are especially challenged to ensure that their classrooms reflect the diversity of the communities they serve.
The Court’s SFFA decision just made this task harder.
Olympia Duhart is a Professor of Law at Nova Southeastern University’s Shepard Broad College of Law. She is the Co-President of the Society of American Law Teachers (SALT). SALT was one of 22 organizations that joined Equal Justice Society and California ChangeLawyers in filing an amicus brief in SFFA supporting race-conscious admissions.
