Editor’s note: This article is part of a series in which the Teaching Center focuses on legal and political developments affecting higher education ... and university teaching more specifically. Aiming to encourage informed dialogue by describing and explaining the issues that underpin significant events and trends, these pieces will support an enhanced classroom climate, one in which salient concerns do not remain invisible simply because they can be difficult to discuss. 

By J.D. WRIGHT  

This summer, with a 237-page set of densely reasoned opinions, the U. S. Supreme Court for all intents and purposes ended the practice of race-conscious admissions in most public universities (and in private universities that accept federal funding). University admissions officers across the nation have been scrambling to understand, implement and respond to the court’s mandate in ways that can lawfully advance those institutions’ values and priorities.   

But the decision has repercussions for everyone in post-secondary education, particularly for those who teach. Recognizing that law and politics — with events ranging from the George Floyd murder to the war in Ukraine — influence classroom climate, Pitt instructors are already asking how they can unravel this complex decision and how they can approach it effectively and responsibly in class.  

Understanding the court’s decision  

While condensing a 40-page leading opinion (along with three concurrences, two dissents, and decades worth of precedential decisions) into this article’s narrow span isn’t feasible, clarity on a few key points can guide us toward an accurate understanding of the majority’s rationale.  

“Strict Scrutiny”  

Although the Constitution’s guarantee of equal protection requires governments to treat people equally under the law, state actors sometimes have valid reasons for creating distinct categories of people. For example, a state does not violate the ideal of equal protection by determining one’s eligibility for driver’s license in part by reference to whether that person is in the category of those under 16 years of age.  

To determine the legitimacy of these kinds of classifications, courts developed standards of review analogous to the settings on a microscope. Just as the microscope’s level of magnification literally determines how closely you see an object, the standard of review determines in a metaphorical sense how closely you examine a classification, i.e., how skeptically you investigate it.  

Some classifications are presumed to be permissible, and courts defer to the government by requiring only a “legitimate” state interest in making the classification and a “rational relationship” between the classification and the goal that it’s supposed to achieve. Other classifications are deemed more suspect and thus require a more important state interest and a closer fit between means and ends.  

Given our nation’s history, classifications based on race are disfavored and therefore receive the most exacting review, “strict scrutiny.” These classifications are permissible only when the state interest is “compelling” and the classification is “narrowly tailored” (i.e., necessary) to achieving that objective. 

Affirmative action precedent 

Federal courts long held that race-conscious university admissions programs, if constructed and administered within certain boundaries, could survive even the rigors of strict scrutiny.  

Affirmative action policies routinely satisfied the requirement that they be “narrowly tailored” to serve a compelling state interest. While the state interest in a diverse student body (first announced in an unusual cacophony of confusing opinions) was ultimately deemed “compelling” in a much less ambiguous decision, the court barred universities from (among other things) stereotyping on the basis of race and using race to bar an applicant instead of as a “plus” factor for another candidate. Moreover, universities had to operate their admissions programs in adequately measurable ways that would facilitate strict scrutiny analysis.  

Later, in a 2003 decision, the court insisted that affirmative action programs be limited in time, estimating that, within 25 years, they would “no longer be necessary.”  

What was different this summer 

Although the court did not explicitly overrule any of its affirmative action jurisprudence, it saw the specific policies at issue in a different light than most policies in its earlier cases, concluding that they did not pass constitutional muster. If strict scrutiny is judicial review with a bite, then the court this summer gave the standard sharper teeth. 

This time, the court closely inquired into the question of whether the racial classifications at issue were “narrowly tailored,” finding that the categories that the universities employed were often overbroad (e.g., “Asian” rather than “South Asian” and “East Asian”); imprecisely defined (e.g., “Hispanic”); or underinclusive (e.g., the absence of a category for students of Middle Eastern descent).  

As far as the nature of the state interest was concerned, the court held that the policies, which the universities had defended on the grounds that they promoted student-body diversity, actually stereotyped applicants by improperly assuming that race predicted viewpoint for the purposes of “diversity” more broadly conceived. The other interests that the universities advanced in support of those policies, like “training future leaders,” were deemed insufficiently measurable and too “elusive” to permit a full strict scrutiny review.

The court also declined to characterize the universities’ use of race as nothing more than a “plus” factor in their policies; rather, it described the application process as a “zero-sum game” in which one applicant’s bonus necessarily counted as a strike against another applicant.  

Harkening back to its 2003 pronouncement that racial preferences would be unnecessary by 2028, the court found alarming the perception that the universities had no measures in place to sunset race-conscious admissions policies and no coherent metrics for determining when those policies would no longer be necessary.  

Practical classroom interventions 

Given the law as it is, the question for instructors is how to approach it in class. 

One group of faculty from USC’s Rossier School of Education encourages instructors to learn the law and talk about it to avoid a common trap for universities confronting new restrictions, “repressive legalism” or a tendency to overcorrect in response to political and legal developments. This group recognizes that the court did not prohibit discussions of race in the classroom and asserts that university teachers should “resist undue caution” in reacting to the new case. Quoting Justice Sonia Sotomayor in dissent, they urge that, “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race.” 

Be aware of the possibility for pushback in response to efforts to inject these kinds of discussions into your curriculum. Although dating back nearly a century, the American Association of University Professors’ recommendation that instructors avoid “controversial matter having no relation to the subject” remains relevant to live political debates about pedagogy. Difficult topics, however, can legitimately arise in many forms throughout a whole range of disciplines and fields. Link your content to these conversations and be aware that — whether difficult topics seem germane or not — they will affect your classroom’s dynamics even if you don’t acknowledge and address them. 

For instructors who choose to engage students on the subject of affirmative action, the University of Michigan proposes a set of guidelines that might foster productive discussions. For example, careful planning can avoid many of the disadvantages that accrue when the issue emerges spontaneously and without adequate preparation. Identify an objective, provide a common basis for understanding by means of shared background readings, and establish some simple ground rules that encourage respect and receptivity. Welcome voices from a range of backgrounds and perspectives to promote broad-based participation and have measures in reserve for defusing the tension that can arise from “hot moments” about controversial questions. 

Finally, providing equitable opportunities for learning is a good practice for teaching about affirmative action and for teaching in general. Set the tone of your course early in the semester, even on the first day, by outlining goals and garnering agreement on the rules through which those goals will be achieved. Get to know your students, even beyond just learning their names — find out about their interests, backgrounds, and experiences and inquire about their familiarity with and exposure to issues and norms within your discipline.

Provide ample opportunities for student participation that include students interacting with each other; this kind of rapport-building can help to establish trust and reduce barriers to understanding. And, to make your work more accessible to students, be explicit about your methods instead of assuming that the reasons for your approaches are clear and obvious to your students. 

Conclusion 

If you need support addressing affirmative action or other concerns in the context of your teaching practices, contact the Teaching Center to schedule a consultation. The Office of University Counsel provides “advice and counsel to the University of Pittsburgh community” on “legal and policy matters involving or affecting the University” (but not on personal legal issues); contact your school or department leadership if you face a policy-related concern that seems to be more than you can handle, and that team can in turn reach out to the Office of University Counsel in an appropriate case. 

J.D. Wright, who earned his law degree from William and Mary and his Ph.D. from Pitt, is a teaching consultant with the University Center for Teaching and Learning. He can be reached at jd_wright@pitt.edu.