Operating in the Shadows

Guest: Prof. Guha Krishnamurthi of University of Maryland Carey Law School on how the U.S. Supreme Court’s ruling against race-based admissions won’t change the practice of affirmative action at universities nationwide.

On June 29, 2023, the U.S. Supreme Court ruled against race-based admissions at college campuses nationwide after hearing companion cases by Students for Fair Admissions (SFFA) that challenged admissions programs at Harvard and the University of North Carolina (UNC). SFFA overturned the 2003 ruling by a more liberal Supreme Court in the case Grutter v. Bollinger, which affirmed that a student’s race could be used as one of multiple factors in admissions decisions at the University of Michigan.

Affirmative action was rejected by the conservative majority on the bench, which agreed that UNC’s policies violate the equal protection clause of the Fourteenth Amendment and that Harvard’s affirmative action plan discriminates against Asian American students, a violation of Title VI of the Civil Rights Act of 1964. But did it really change the way campus admissions will operate?

In their forthcoming paper in the Texas Law Review, “The Goose and the Gander: How Conservative Precedents Will Save Campus Affirmative Action,” Professor Guha Krishnamurthi of the University of Maryland Carey Law School contends (along with his co-author Peter Salib) that though affirmative action is legally dead, race will still figure into holistic admissions procedures — just not as a check-box item.

In this episode of Discovery, we speak with Prof. Krishnamurthi about the previous state of play in race-based admissions and his opinion that the U.S. Supreme Court’s ruling against campus affirmative action has no practical effect on the way schools operate. He argues that due to the Supreme Court’s decades-old rulings that statistical proof cannot carry a constitutional discrimination claim, universities will only be liable in litigation if they admit that they practice affirmative action, so most schools will pursue diversity by other means, simply by operating in the shadows.

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