Garrett Coleman '25
Managing Editor
After Students for Fair Admissions v. President and Fellows of Harvard College,[1] race-conscious diversity-initiatives in undergraduate admissions were drastically curtailed. To explain the Supreme Court’s prior jurisprudence and the impact of SFFA, the Miller Center at the University of Virginia hosted a panel discussion titled, The evolution of affirmative action—and its uncertain future, on Friday, September 15. The panelists, introduced by Dean Christa Davis Acampora of the College of Arts and Sciences, included Professor Kevin Gaines, senior fellow at the Miller Center; Eugene Hickok, former Unites States Under Secretary of Education; Professor Barbara Perry, Co-chair of the Presidential Oral History Program; and the law school’s own Professor Kimberly Jenkins Robinson, also a senior fellow at the Miller Center.
Photo Credit: Miller Center.
Professor Perry, who served as moderator, began the discussion on a history of the term “affirmative action” itself. First introduced by President John F. Kennedy in an executive order, the early mission was well-presented by a commencement address President Lyndon B. Johnson gave to Howard University in 1956. In it, President Johnson gave the metaphor of chaining someone down for decades, only to free them and demand they compete with the rest of society.
Adding to that historical context, Professor Gaines explained the response to affirmative action in the various conservative movements since the civil rights era. It was President Richard Nixon who first successfully implemented affirmative action through the Philadelphia Plan, which was an executive order that addressed the exclusion of Blacks from the skilled labor unions in Philadelphia. But Professor Gaines also implied that President Nixon’s support for affirmative action waned as large swaths of the conservative base grew sour to the idea. This then takes us to the conservative revolution ushered in by President Ronald Reagan, which brought with it a distinctly colorblind approach to race in America. Accordingly, affirmative action becomes another form of impermissible discrimination, rather than a remedy. By the end of the panel, Professor Gaines made an interesting observation on a footnote within Chief Justice John Roberts’s majority opinion in SFFA, which said that the Court was not addressing admissions for the military academies. Professor Gaines found this interesting because the U.S. military has been “the showcase example for racial integration” and its benefits.
At this point, the conversation shifted to cover the legal landscape prior to SFFA. After providing background on Equal Protection for the audience, Professor Robinson dove into the two Fisher cases.[2] The unique aspect to these cases was that the school could provide clear evidence that there were no less restrictive means to achieve their goals. With the state of Texas having outlawed affirmative action several years earlier, the state universities were consistently unable to meet their diversity goals solely through race-neutral means. This allowed the school to provide “tangible evidence” that the diversity goals necessitated some consideration of race in their holistic review pathway, supporting their conclusion that the plan was narrowly tailored. But, while this iteration of affirmative action survived equal protection scrutiny, Professor Robinson said that the Court’s opinion was a “ratcheting up of the legal standard” that schools would have to meet in the future when compared to the Grutter standard.[3]
Professor Robinson also touched on Justice Sonia Sotomayor’s dissent in SFFA, which she called “a beautiful opinion that really challenges the majority’s description of what the Constitution means.” That majority reading of the Fourteenth Amendment, tying back to Professor Gaines’s comments on the Reagan Revolution, is a fundamentally colorblind one. On the other hand, jurists like Justice Sotomayor would achieve equality by first acknowledging race. And Professor Robinson argued that this is consistent with the intent of the Fourteenth Amendment, as evidenced by congressional action to create the Freedmen’s Bureau, which explicitly acknowledges race.
The last voice to chime in on this panel was that of Eugene Hickock, who worked to implement the No Child Left Behind Act of 2001 in the second Bush Administration. He characterized that act and movement as one that dealt with academic disparities across racial lines as early as possible in the developmental cycle, and opined that President George W. Bush does not get enough credit for that legislation’s impact. This is even more true given that the law was not going to fully take effect until the years after his administration had ended.
Absent from this discussion were hints about how the school would proceed in light of SFFA. Given the academic character of this discussion and absence of admissions officials, this did make sense and made for a more focused panel.
Professor Berry ended the event with a quote from Justice Charles Evans Hughes, which he gave when the first cornerstone[4] of the Supreme Court building was laid in 1932: “The Republic endures and this is the symbol of its faith.”
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jxu6ad@virginia.edu
[1] Students for Fair Admissions, Inc. v. President and Fellows of Harvard Coll., 143 S. Ct. 2141 (2023) (hereinafter SFFA).
[2] Fisher v. Univ. of Texas at Austin, 570 U.S. 297 (2013); Fisher v. Univ. of Texas at Austin, 579 U.S. 365 (2016) (approving the two main admissions policies of the university, one of which was a top 10 percent plan specifically implemented to increase diversity, the other being a holistic review process that took race into consideration as one factor among many).
[3] Grutter v. Bollinger, 539 U.S. 306 (2003).
[4] https://supremecourthistory.org/homes-of-the-supreme-court/#:~:text=When%20the%20cornerstone%20was%20laid,the%20symbol%20of%20its%20faith.%E2%80%9D.