January 6, 2024 - 8:00am

Legal activists are working to end racial discrimination in hiring and school admissions through a handful of court cases currently moving towards the Supreme Court. 

In 2023, the Supreme Court struck down affirmative action in Students for Fair Admissions (SFFA) v. Harvard and UNC. The ruling narrowly banned the practice of direct racial discrimination in college admissions, but universities appear to be using loopholes to skirt the ban. Due to the ruling’s limited application, it means that racial discrimination, both direct and indirect, still thrives in elite high school admissions and in hiring practices across the country. 

The extent to which universities are still factoring in race in admissions will become apparent in April, when acceptance decisions are released. But since the court’s June ruling, universities quickly seized on its ambiguities, encouraging students to mention their race in college essays. Johns Hopkins University, for example, asked applicants to “tell us about an aspect of your identity (eg. race, gender, sexuality, religion, community, etc.) or a life experience that has shaped you as an individual”, while Rice University asked, “What perspectives shaped by your background, experiences, upbringing, and/or racial identity inspire you to join our community of change agents at Rice?”

Some universities may actually be crossing the line into territory that explicitly violates the court’s ruling, rather than merely violating it in spirit, according to Edward Blum, president of Students for Fair Admissions (SFFA), the group behind SFFA v. Harvard. 

“SFFA is closely monitoring a few universities where we believe their required essays are little more than racial classification checkboxes,” Blum told UnHerd, though he declined to name them due to likely litigation.

Several prestigious high schools are using racial proxies such as zip codes or what middle school a student attended as factors in admissions. The Supreme Court is expected to announce in the coming weeks whether it will consider one such case: Coalition for TJ v. Fairfax County School Board. 

Parents affiliated with Thomas Jefferson High School for Science and Technology, one of the top-ranked public high schools in the US, are suing the institution over admissions standards imposed in 2020 which they argue racially discriminate in violation of the Constitution. The school replaced standardised testing with a “holistic” admissions process and subsequently saw a massive decline in the admission of Asian students. After losing in federal court, the parents are appealing their case to the Supreme Court, which could use it as an opportunity to expand the affirmative action ban beyond higher education. 

Erin Wilcox, an attorney at Pacific Legal Foundation who is litigating on behalf of the parents, told UnHerd that universities will likely adopt racial proxies like those used by K-12 institutions in order to skirt the ban on direct racial discrimination. 

“It’s just as unconstitutional to discriminate based on race by proxy as it is to do it outright,” she said. “And so I think the Supreme Court needs to be very clear, and issue a ruling that that kind of discrimination is illegal as well.” 

Blum is hopeful that the judicial system will continue striking down racially discriminatory practices, and that the Supreme Court will pick up Coalition for TJ’s case or one like it and ban direct racial proxies in high school admissions. 

“In dozens of polls over the last 20 years, the vast majority of Americans of all races believe that someone’s race should not be used to help them, or harm them, in their life’s endeavours,” he told UnHerd. “The courts are finally applying our nation’s civil rights laws as they were conceived.” 

Blum has good reason to be optimistic. Roberts, the most moderate member of the Supreme Court’s 6-3 conservative majority, seemed to hint that the door was open for further restrictions on race-based discrimination in the majority opinion he authored. 

“Eliminating racial discrimination means eliminating all of it,” Roberts wrote. “Accordingly, the Court has held that the Equal Protection Clause applies ‘without regard to any differences of race, of color, or of nationality’— it is ‘universal in [its] application’. For ‘[t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color.’”

is UnHerd’s US correspondent.