The historic South Building at the University of North Carolina at Chapel Hill (Photo: Clayton Henkel)
The UNC System’s recent directives to its campuses on how to react to the U.S. Supreme Court decision on race in admissions at UNC-Chapel Hill and Harvard University reflect the politics of the system’s political appointees more than sound legal reasoning, according to a prominent civil rights attorney who argued the case.
When civil rights attorney David Hinojosa defended the constitutionality of UNC-Chapel Hill’s admissions policies before the Supreme Court in Students for Fair Admissions v. University of North Carolina and Students for Fair Admissions v. Harvard, he made the arguments those campuses — and the UNC System — had long made themselves.
That racial and ethnic diversity is a benefit to colleges and universities, their students and the quality of education they provide. That affirmative action in higher education admissions, including the consideration of race, has helped to make campuses more diverse over the last half-century. That colleges and universities have the right to decide how best to shape their learning environments.
But in the immediate aftermath of the U.S. Supreme Court’s 6-3 decision against the consideration of race in admissions, members of the UNC Board of Governors and UNC-Chapel Hill Board of Trustees celebrated the school’s defeat, saying it should never have defended the practice in the first place. The court’s decision, several members said publicly, was proof the university had been on the wrong side of the issue all along.
“I just want, I want everybody to think about it, because this is a moment of humility,” said John Preyer, a member of the UNC-Chapel Hill Board of Trustees, in a board meeting last month. “It’s a moment that I know that a lot of people thought that we were fighting a good fight, and that it needed to be fought. But as it turns out, we were actually doing something we shouldn’t have been doing.”
That sort of legal logic isn’t unusual at the intersection of politics and the law, Hinojosa said — though it is often selectively deployed.
When, for instance, a North Carolina Superior Court scrapped the UNC System’s legal settlement with the NC Sons of Confederate Veterans over a toppled Confederate monument in 2020, political appointees at the system and campus level boards did not conclude the court had shown them the error of their ways and they should never have made that deal.
Hinojosa, director of the Educational Opportunities Project at the Lawyers’ Committee for Civil Rights Under Law, said the UNC System recent directives go well beyond what is required by the Supreme Court’s actual ruling. They also leave little doubt, he said as to where a system governed by political appointees of the North Carolina General Assembly’s Republican majority stands politically.
“When you look at these directives, I think it certainly is an extremely conservative, overly protective, and anti-civil rights way of addressing a very narrow ruling,” Hinojosa said.
The directives, laid out in a five-page document released earlier this month, read as much like a statement of philosophy as they do legal guidelines for complying a major court decision, Hinojosa said.
“I don’t know if it’s avoiding lawsuits as much as it is the way for white privilege students to continue to have the main thoroughfare to the system’s universities,” Hinojosa said. “Their statement around whether or not universities can and should still continue to pursue diversity goals, and the like, you know, has very rigid language — almost suggesting as though universities should not pursue diversity, with all its benefits, whether through race conscious measures or through race neutral measures.”
Universities embracing the most conservative interpretation of a narrow ruling might worry about lawsuits from students, alumni and affinity groups who believe that goes too far, Hinojosa said — and they can be just as long and costly as lawsuits from conservative quarters.
“It could very well lead to lawsuits, depending on the facts and circumstances,” Hinojosa said. “How is this done and enforced? I think they’re opening themselves up to liability by trying to bend over backwards to work in their own ideological beliefs through this policy guidance.”
“I don’t know how that would work”
Hinojosa points to the system’s directive on essay questions that may lead students to expound on their experiences of race and what they meant to the student’s development.
The high court’s ruling found using race as a criterion in admissions decisions to be a violation of the Fourteenth Amendment’s equal protection clause. But it also explicitly stated “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”
“That’s a clear carve-out for those kinds of questions,” Hinojosa said.
But conservative critics have seized on that line, warning that colleges and universities could ask such questions as a proxy for race and threatening new lawsuits if they interpret them that way. New policy language passed in a resolution by the UNC-Chapel Hill Board of Trustees last month would make it nearly impossible to craft questions — or consider answers — about racial experiences or how race has affected an applicant’s life. The UNC system directives this month appear to extend that prohibition to other campuses throughout the system.
“Public response to the decision includes discussion of a hypothetical essay response that might reveal the applicant’s hardship suffered because of, or inspired by, race,” one section of the directives document reads. “Given the ready source of plaintiffs and the high cost of litigation, and the concurrences’ failure to criticize the discussion as a poison pill in the Court’s logic, the essay discussion likely is not an exception that swallows the rule.”
“Instead, the Court’s language—coupled with the broader cautionary language the Chief Justice follows it with—might be better read only as an intellectually honest acknowledgment that an applicant’s personal experience because of the applicant’s race may shape or forge other race-blind attributes that bear directly on whether the applicant is best suited for admission,” the document reads. “Things like grit, determination, humor, and drive are all traits—among countless others—that are the product of the experience unique to each of us, and the high court’s dicta seems only to reinforce the need for individualized determinations that do not treat people or groups differently because of the color of their skin.”
It is difficult to determine how students of color are supposed to provide honest examples of how traits like their “grit, determination, humor and drive” were formulated while not discussing their or their families’ racial experience in America, Hinojosa said — or to determine how admissions officials are supposed to disregard that information if it is given.
The directives point to a new UNC System policy, passed before the Supreme Court decision, that prohibits “compelled speech” — saying that even if certain questions or practices don’t run afoul of the Constitution, they may violate that policy.
That policy reads in part:
“[T]he University shall neither solicit nor require an employee or applicant for academic admission or employment to affirmatively ascribe to or opine about beliefs, affiliations, ideals, or principles regarding matters of contemporary political debate or social action as a condition to admission, employment, or professional advancement.
Nor shall any employee or applicant be solicited or required to describe his or her actions in support of, or in opposition to, such beliefs, affiliations, ideals, or principles. Practices prohibited here include but are not limited to solicitations or requirements for statements of commitment to particular views on matters of contemporary political debate or social action contained on applications or qualifications for admission or employment or included as criteria for analysis of an employee’s career progression.”
Prohibiting universities from asking any questions about beliefs, ideals or principles regarding anything that be considered “contemporary political debate or social action” seems so broad as to be impractical, Hinojosa said, particularly when any politically motivated group could declare even long-held values of universities and governments to be matters of “contemporary political debate.”
“I don’t know how that would work,” Hinojosa said. “Colleges and universities do have and declare certain values. They always have. There has always been debate. So who decides that?”
The recent UNC System directives also go beyond race in admissions, predicting — and reacting — to potential conflicts that haven’t yet happened.
“It is likely that Students for Fair Admissions’ holding and rationale will be extended to other instances where university actors use race in allocating university resources,” the final section of the directive document reads. “Because the rationale of the decision could affect the award of scholarships and financial aid, campuses should begin to evaluate and assess any scholarship or aid programs that consider race in the award of the benefit, and the extent to which campus officials play a role in the award decision.”
“Institutions should broadly consider how various University-sponsored programs are constituted and organized,” the document reads. “Programs that offer opportunities for students based on race to the exclusion of others, who are not of the same race, may also be implicated by the Court’s ruling. So, too, campuses should start evaluating whether they believe certain scholarships, aid, and campus programs are still permissible.”
That’s precisely how conservative activists have been hoping universities will react to a U.S. Supreme Court decision that doesn’t speak directly to any of those things, Hinojosa said — extending the interpretation to threaten everything from the funding of student affinity groups to centers and events for the support of minority populations on campuses. The UNC System directive essentially admits the decision doesn’t touch on those areas, Hinojosa said, “but it makes policy assuming those challenges will come and that conservative victories there are assured.”
“There are other universities that are going to continue doing the great work and pursuing diversity and all its breadth, including racial diversity, through proper lawful ways,” Hinojosa said. “And and I think that’s great. And it’s a shame that a university system like North Carolina, which considers itself one of the leading public university systems is heading back in this direction by turning the clock back as though we are in the 1950s again.”
The UNC System is held in deserved high regard in a state where public education is struggling, Hinojosa said. These directives threaten to once again limit access to it, he said.
“The state of North Carolina has an incredibly inequitable and inadequate public school system in K-12,” Hinojosa said. “When you pair that with a very rigid interpretation of a very narrow ruling, you will end up blocking access to scores of Black and brown and Native American students in North Carolina — especially the flagships that provide the most robust pathways to economic mobility. And it’s just a downright shame that this university system would try to marshal forward its own ideological, highly politicized goals by suggesting that this opinion requires it to do so.”
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