As of last week, universities face a new legal constraint: the Supreme Court has severely restricted the use of race as a factor in admissions. Nothing in its decision, however, frees universities from their moral obligation to create on-ramps for talented students from all backgrounds. Talent exists everywhere; opportunity does not. Finding it and nurturing it remain entirely consistent with the mission of higher education and, indeed, vital to our democracy.
More than in any other setting, students who are raised in homogeneous neighborhoods and schools first encounter differences — class, racial, ethnic and religious — in college.
It is in college that many students first have the opportunity to form meaningful relationships and exchange ideas across differences and prepare for a society and a work force consisting of people from all walks of life. The process of learning from one another is both rewarding and challenging; speaking as someone whose educational journey began with being bused to formerly all-white public schools and eventually taking me to the Ivy League, I can say this was as true for me as it was for my peers.
My classmates and I matriculated at Yale Law School from a variety of backgrounds. The coming together in classrooms of people from small towns and large cities, impoverished neighborhoods and wealthy enclaves and a multitude of religions, ethnicities and races in and of itself constituted an education.
During the 1990s, when I walked the university’s campus, the Wall — a place where students could post reactions to issues of the day — exemplified how this worked. The Wall was a gathering place for conversation and debate, a place where students argued, confessed and persuaded.
It was at the Wall where one of my classmates, a South Asian woman, outed herself — on a campus still overwhelmingly populated by the sons and daughters of the wealthy and powerful — as having grown up reliant on food stamps and welfare. Her post came after a class discussion about whether the law need concern itself with the unique burdens imposed on the poor; some classmates were not so sure. This was, after all, the era when stereotypes about the welfare of queens and deadbeat dads prevailed. But my classmate’s story about growing up poor — indeed, her very existence among this group of intellectually chosen — challenged these attitudes.
Eventually, I would have my own say at the Wall. I felt the need to speak up after a class discussion about the constitutionality of school busing. Under consideration was a landmark case that virtually eliminated forced cross-district busing as a tool for racial integration. I thought the discussion overemphasized the notion of white innocence; I steered it back to the constitutional rights of Black students to equal educational opportunity, which hung in the balance. This case was about people like me. Access to racially integrated schools — better funded and of better quality than the segregated schools to which generations of Blacks had been relegated — had allowed me to flourish.
That day at the Wall, precisely because of the interplay of my ideas and identities with those of my peers, my classmates and I experienced the tangle of cognitions and emotions associated with deep learning. For me, I feel the satisfaction of raising my voice, the discomfort in asserting a perhaps unpopular position, the challenge of articulating a viewpoint. Many of my classmates would go on to shape laws, policies and politics in the decades to come. On that day, at least, they had the benefit of engaging with an experience far removed from the world many knew.
Now as a constitutional law professor and historian, I observe — and facilitate — similarly challenging conversations in the classroom. The array of experiences represented among my students can make all the differences in discussions. I’ve taught classes in which students sometimes stake out positions that are shaped, in part, by race-related experiences, social class, nationalities and gender identities. These perspectives can be pedagogically beneficial, helping to identify blind spots and illuminate the pros and cons of legal arguments. More than a decade ago, I taught a class about marriage equality, a hotly contested issue at the time. The class took a stark turn when a solitary student raised her hand to note that many conversations about gay rights ignored the experiences and rights of trans people. By identifying an emerging legal issue, she was encouraged by the class to think more critically about gender. This is how learning happens.
We should remember that these kinds of learning opportunities are relatively new in the history of higher education. For hundreds of years, many universities that today proudly champion a diverse society promoted and perpetuated class, racial and gender hierarchies.
Beginning with Brown University in 2006, reports commissioned by dozens of universities have documented higher education’s extensive entanglements with slavery and racial discrimination. Georgetown, the University of Virginia, William and Mary, Johns Hopkins, Rutgers, Princeton Theological Seminary, Yale and others, including the University of North Carolina and Harvard, have detailed direct, financial and intellectual ties to slavery. In dissenting opinions Justice Sonia Sotomayor extensively referred to this aspect of Harvard’s history, and Justice Ketanji Brown Jackson cited UNC’s practice of de jure segregation.
Particular universities practiced racial discrimination, and it was baked into the system of higher education that was developed after the Civil War, when the federal government allowed Confederate states to establish separate land-grant institutions for Black people, then failed to fund or staff them equitably.
Even universities not directly implicated in discriminatory practices perpetuated discrimination in postwar America. After World War II, many universities pursued their research missions through partnerships with government and industry that advanced state building and economic development. The problem? Expansion occurred against the backdrop of racial segregation and inequality. As universities sought to redevelop areas and construct buildings, they supported policies that displaced Black, Latino and working-class households or perpetuated residential segregation, concluded the urban historian LaDale C. Winling. Meanwhile, few students from these communities gained access to the universities.
This history, juxtaposed with the possibilities for change and growth that I know can occur when students learn in diverse environments, roots my conviction that higher education still has a role — indeed, a responsibility — to help create opportunities and communities in our dangerously divided nation .
So what is to be done? Now that the court has put an end to broad reliance on race-conscious tools to create greater educational access for historically marginalized communities, new ones are needed to find and support talented students from all walks of life, especially those who are descendants of slavery, segregation and their legacies. Even Justice Brett Kavanaugh’s concurrence acknowledged that the effects of past racial discrimination persist.
There are many ways to create a more equitable education system instead of one that merely replicates social division. One option: feeder schools — which reliably produce the kind of students valued by universities — that don’t merely cater to the well bred and well heeled but rather seek out the academically capable whose personal histories demonstrate the quality that the psychologist Angela Duckworth called grit . It’s the passion and perseverance required to overcome drawbacks and achieve a goal. The spectrum of life experiences that gritty students bring to a campus can enliven it and contribute to the robust exchange of ideas in and outside of class.
Another option: more partnerships and interventions that occur years before students apply to college. Like Bard College, schools could create early college programs, which allow high school students to take and earn college credits.
And more schools could follow the example of the University of California system, creating a robust transfer pipeline that enables students to move from community colleges to selective four-year institutions.
There is no shortage of ideas for how to pursue inclusivity in higher education within the bounds of the law as the court has now drawn them. The court did not ban race-neutral pathways to achieve racially diverse learning environments and even noted that universities can consider educationally beneficial ways that race may affect an applicant’s life experiences, “whether through discrimination, inspiration or otherwise.” Universities must define and defend race neutral practices, and assert and protect all applicants’ freedom of expression about race-related experiences.
To seize on the opportunity that remains in the law, we must also recognize that in the wake of a divisive decision, consensus remains on a crucial point: that learning across differences can still be a priority for universities. Although the point is lost in many commentaries, a majority of justices opposed particular race-conscious means but did not ban the pursuit of the goal of diverse campus communities.
If we appreciate this, we can start to see the last week’s ruling as not only a challenge but also an opportunity. In a world on fire, with flames fanned by yawning income and wealth inequality, enduring racial and ethnic divisions and huge educational opportunity gaps that start at birth, all institutions of higher education should recommit, in the wake of the decision, to awarding the college diplomas prizes in our knowledge economy to a broad array of students. Our teetering republic depends on it.