WASHINGTON — Earlier this year, 56 Catholic colleges and universities signed onto an amicus brief to the US Supreme Court, arguing for the continuation of affirmative action in higher education. This week, the justices began proceedings that could change the landscape of the issue.
Part of a highly contentious start to the high court’s new session, oral arguments began on Monday for two separate cases, both filed by Students for Fair Admissions and seeking an end to considerations of race in college admissions.
The first, concerning Harvard College, involves Asian students alleging harm by the systems’ preference for lower-performing students, while another involving the University of North Carolina says the use of socioeconomic data in admissions violates the Civil Rights Act of 1964.
Georgetown University led efforts to file the opposing brief, which argues that “racial diversity in student admissions improves educational outcomes and fosters the spiritual development of [the schools’] students consistent with their Catholic values.”
“Such a compelling interest is not merely abstract or judicially implied, but is rather deeply rooted in constitutional principles.”
The list of institutions in the brief spans the spectrum of Catholic higher education, including three of the top 50 schools in the country in Georgetown, the University of Notre Dame, and Boston College. The US bishops’ own Catholic University of America signed on as well.
Also included are some of the most diverse Catholic colleges and universities nationwide, and some of the Blackest as well—in Albertus Magnus College (located less than a mile from Yale University), Christian Brothers University, Fontbonne University, Loyola University New Orleans, Trinity Washington University, and Trocaire College.
The final college listed is Xavier University of Louisiana, the only Catholic school counted among the nation’s historically Black colleges and universities, which have long occupied their own corner of the affirmative action controversy.
Critics of affirmative action, including the Supreme Court’s conservative justices, say that it privileges students in a way that is unconstitutional—a criticism that dates back to the program’s earliest days. The program was originally a product of the Reconstruction Era, when a number of short-lived reparational policies emerged in the wake of the Civil War and Black emancipation.
Affirmative action expanded into higher education in the 1970s, after which a series of court cases gradually led to its demise in a number of states—and to a shift in focus from reparative quotas to increasing overall diversity at otherwise exclusive institutions.
Vincent Rougeau, one of the few Black presidents at a school in the Catholic amicus brief, heads the College of the Holy Cross in Worcester, Massachusetts and wrote a letter to the campus community this week concerning the case.
“The ability of higher education institutions to consider race as one factor in a holistic admissions process has been a critical component of our efforts to build a diverse student body and learning environment,” he said.
“In states where such bans have been enacted, racial diversity has fallen at public institutions. The consequences of a change in this 40-year-old legal precedent could be significant for all students—for underrepresented racial/ethnic minority students most acutely—and for our broader work in higher education to deliver on the promise we make to serve the public good.”
While it is true that studies have shown a decrease in diversity at many schools no longer bound to affirmative action, others say the program has long outlived one of its original purposes: empowering disadvantaged African Americans.
More moderate critics have pointed out that, over the years, the system has come to privilege immigrant Blacks and their children over African-American descendants of slavery, leading to disproportionate numbers at many of the nation's more prestigious schools—including Georgetown, Notre Dame, and even HBCUs like Howard University.
Rather than call for complete eradication, these critics have advocated for a revamped program that more specifically targets disadvantaged groups for college placement. It is unclear, however, whether conservative legislators opposed to affirmative action would support such a move.
On Monday, Associate Justice Clarence Thomas—the Supreme Court’s resident Black Catholic—honed in on hypocrisy, claiming that he (and, presumably, higher education administrators) can’t adequately define diversity, implying that it likewise cannot be protected by the Constitution.
“It seems to mean everything for everyone,” he said during arguments for the UNC case, alongside repeated questions about how diversity can directly lead to educational benefits, and whether affirmative action is still effective for its original purpose at the school.
“Do you think that 1.2 percent marginal difference is enough of a compelling interest to continue a race-based program?”
A scant few miles from the Supreme Court proceedings, Patricia McGuire—president of Trinity Washington, a majority-Black school—said this week that, for Catholic institutions, championing minority enrollment must remain a priority.
“Catholic higher ed must do much more to promote models of access, equity and justice on our own campuses,” she wrote on Twitter.
“We should be advocates and activists for students of color who are still marginalized in too many places.”
Final decisions in the twin affirmative action cases before the Supreme Court will be formulated over the next several months, and could be issued as early as early next year. They are not expected, however, until late June.
Nate Tinner-Williams is co-founder and editor of Black Catholic Messenger, a seminarian with the Josephites, and a ThM student with the Institute for Black Catholic Studies at Xavier University of Louisiana (XULA).