Sotomayor’s Dissent Sheds Light On Religious Universities Amid Affirmative Action Debate
(ANALYSIS) The Supreme Court released a generation-shaping decision on June 29 that conclusively prohibited higher education institutions from considering race in student admissions.
This polarizing decision predictably held fast to ideological divides on the court:
The six conservative justices held that “Harvard and UNC admissions programs violate the Equal Protection Clause of the Fourteenth Amendment.”
The justices provided several rationales, including that Harvard and UNC did not structure their race-conscious admissions plans to be able to be measurable enough to allow the courts to apply a strict scrutiny review standard.
The majority opinion also noted that these universities’ admissions programs additionally violated the Equal Protection Clause’s dual dictates “that race may never be used as a ‘negative’ and that it may not operate as a stereotype.’”
Finally, according to the majority opinion, both UNC and Harvard’s race-informed admissions programs failed to set a clear and rational end point, as previous precedent required.
Sotomayor’s dissent considers religious universities’ religious missions
Upending 50 years of SCOTUS rulings, this decision effectively ends the freedom of institutions of higher education — including religious colleges and universities — to use race as one of a plurality of characteristics that admissions programs may consider in determining which potential students will be admitted. In her dissent, Justice Sotomayor noted that while military institutions were exempt from ending race-conscious admissions, there was no such exception for public or private colleges and universities.
Sotomayor stated:
“To the extent the Court suggests national security interests are ‘distinct,’ those interests cannot explain the Court’s narrow exemption, as national security interests are also implicated at civilian universities.”
Sotomayor also noted that the majority opinion justified the accommodation for military academies because only civilian institutions were parties to the cases the court heard. However, as Sotomayor pointed out, “The same can be said of many other institutions that are not parties here, including the religious universities supporting respondents, which the Court does not similarly exempt from its sweeping opinion.”
Sotomayor then cited Georgetown University’s amicus brief referencing how Catholic colleges and universities integrate “race in their holistic admissions to further not just their academic goals, but also their religious missions.”
Justice Sotomayor has upheld religious freedom recently in other contexts. Last fall, Sotomayor granted Yeshiva University an emergency stay from a New York Supreme Court decision that Yeshiva claimed would have violated its religious freedom by forcing the Orthodox Jewish institution to recognize an LGBTQ+ student club on campus.
As The New York Times reported at the time, Yeshiva University President Rabbi Berman stated:
“We are pleased with Justice Sotomayor’s ruling which protects our religious liberty and identity as a leading faith-based academic institution. … But make no mistake, we will continue to strive to create an environment that welcomes all students, including those of our L.G.B.T.Q. community.”
Sotomayor’s dissent poses an interesting inquiry, regardless of one’s personal opinion of where the court should have landed on affirmative action: Does the Constitution uphold the spiritual and religious freedom of faith-based higher education institutions to engage in holistic, race-conscious admissions practices as an expression of their sincerely held institutional religious beliefs?
Religious freedom to admit students based on sacred values
I serve as an adjunct professor at the nation’s second oldest historic Catholic university — Mount St. Mary’s in Emmitsburg, Maryland. Last fall, when I learned that the Mount had signed onto Georgetown University’s amicus brief arguing that the Supreme Court should continue to allow holistic, race-conscious college admissions, along with 55 other faith-based colleges and universities, I was intrigued. As Sotomayor mentioned, the Georgetown amicus brief makes clear that racial and other elements of diversity are a cornerstone value for these universities:
“A spiritual touchstone that underscores these principles comes from St. Paul, who in his Epistle to the Galatians said “[t]here is neither Jew nor Greek: there is neither bond nor free: there is neither male nor female. For you are all one in Christ Jesus.” Galatians 3:28 (DRB).”
As I have written before, religious freedom in the United States has come — over the last decade in particular — to be associated with politically conservative causes: the bakers, bathrooms and birth control issues. However, as I have noted elsewhere, there are compelling legal and cultural cases to be made to support the spiritual and religious freedom of individuals and organizations protecting Native American land, advancing women’s rights and advocating for criminal justice reform.
Let’s briefly consider the arguments laid out by the Georgetown amicus brief.
The brief noted that “foundational Catholic values and teachings inform their commitment to give value to the identity of the whole person in admissions.”
Moreover, the amicus brief discussed the faith-based philosophy of whole-life formation.
The brief took a long view of education as cultivation for citizenship in a pluralistic society.
The brief stated that a goal of Catholic education is to curate a “a student body that will, after graduation, promote the Catholic mission of the common good and service to others, especially the poor and underserved.”
The brief highlighted that over 850,000 graduates of Catholic colleges and universities make a substantial impact in the sectors of business, academia, public interest and community service.
Bolstering the connection to Catholic foundational teachings and race-conscious admissions, the brief further argued: “Georgetown’s mission is to educate women and men to be reflective lifelong learners, to be responsible and active participants in civic life and to live generously in service to others. Including a broad spectrum of students from diverse racial and ethnic identities, advances not only the pedagogical but also the spiritual goals of Catholic institutions.”
The brief noted that both the academic and faith-based missions of Catholic universities make necessary “discretion to consider applicants’ racial identities alongside a variety of other factors in admissions decisions” and urged the court to affirm the ability of universities and colleges to continue to holistic affirmative action in their admissions practices.
The brief noted that preserving the religious freedom of faith-based institutions universities of higher education to use their discernment for their admissions processes is essential because “without a diverse student body, including a racially diverse student body, amici (faith-based universities) would not be able to offer the same high-quality education to future leaders — an education animated by Catholic values of social justice and the promotion of the common good.”
The brief concluded that for Catholic academic institutions, supporting racial diversity in the student population “serves a compelling interest in freedom of religious practice and expression that is grounded in the First Amendment’s Free Exercise Clause.”
What does faith-based affirmative action look like?
The Georgetown amicus brief captured similar sentiments to the Association of Catholic Colleges and Universities. In a statement following the Court ruling, the ACCU noted:
“At this moment of U.S. history, the Association of Catholic Colleges and Universities chooses to be guided by its Catholic Social Teaching and will, within the bounds articulated by this latest decision, continue to create paths by which those in society who do not have opportunity find it at our institutions.”
The Council for Christian Colleges and Universities also released a statement that did not take a specific stance on the court’s opinion but did make clear its ongoing commitment to supporting students of color at CCCU schools:
“The CCCU respects the Court’s opinion without in any way walking back the CCCU‘s commitment to diverse student populations now and into the future. We commit to using all of the tools that continue to be at our disposal to recruit and welcome students who want a faith-based education that will impact their lives forever.”
Both faith-led and secular institutions and innovators are now exploring creative ways to keep the spirit of their commitments to diversity alive in light of the recent ruling. In an article called “Moving Toward Adversity-Based Affirmative Action,” Princeton sociologist Paul Starr writes:
“The consideration of adversity is not a violation of the idea of merit; it is a more complete understanding of the abilities that matter in life. It fits entirely with the university’s proper interest in identifying a student’s potential for achievement.”
Starr cited President Biden’s comments following the court’s decision:
“Students first have to be qualified applicants,” Biden stated, however, “once that test is met, then adversity should be considered. … The kid who faced tougher challenges has demonstrated more grit, more determination, and that should be a factor that colleges should take into account.”
This idea of adversity-conscious admissions programs will likely appeal to many Protestant and Catholic colleges and universities. Christ makes clear again and again that the least will be the greatest. That his measure for our lives is the love we pour out in proportion to what we have been given, not as a measure against others who have been given different capacities and resources.
While some feel the court has forced faith-based and secular universities alike into a system that values individual merit above all else, we can pursue the opportunity to uphold our sacred values. The Lord will always have a different measure for our lives than a purely meritocratic system; in fact, he came to abolish such a system for one of grace, where our weakness is made perfect in his strength. Mark 12:41-44 states:
“Jesus sat down opposite the place where the offerings were put and watched the crowd putting their money into the temple treasury. Many rich people threw in large amounts. But a poor widow came and put in two very small copper coins, worth only a few cents. Calling his disciples to him, Jesus said, ‘Truly I tell you, this poor widow has put more into the treasury than all the others. They all gave out of their wealth; but she, out of her poverty, put in everything — all she had to live on.’”
Just like the widow who gave abundantly from her material poverty, adversity may look like young people overcoming a variety of complex and even compound factors, such as being raised in a single parent household, living in a neighborhood without access to healthy food, growing up with a learning disability or attending underfunded schools.
As Starr points out:
“Nothing will prevent universities from taking those sources of adversity into account as long as they do not use race per se as a factor in selecting students.”
This may leave much to be desired. However, faith-based universities — as demonstrated by the Georgetown amicus brief — are leading the way as innovators for whole-person learning and the pursuit of justice. While we do not know exactly how the story of affirmative action in the U.S. will turn out, we can hope and pray that spirit-led, generative solutions will lead to all young people having the opportunities they need to live out their highest potential.
Chelsea Langston Bombino is a believer in sacred communities, a wife and a mother. She serves as a program officer with the Fetzer Institute and a fellow with the Center for Public Justice.