BU Law Faculty Respond to the US Supreme Court ruling on SFFA v. Harvard/ UNC
The world is diverse, and so must be its lawyers and advocates. We will be able to continue recruiting diverse classes to BU Law but will need to do more intensive work to identify obstacles overcome by applicants now that SCOTUS has decreed that race must be essentially ignored in admissions.
— Kevin Outterson, Austin B. Fletcher Professor of Law
The Supreme Court’s ruling prohibiting universities from considering race as a factor in their admissions process has significant implications that extend beyond the classroom. Racial diversity—in legal education in particular—is of utmost importance in fostering a fair, equitable, and inclusive legal system. First and foremost, racial diversity in legal education promotes representation. By providing opportunities for aspiring lawyers from diverse racial and ethnic backgrounds, law schools can ensure that the legal profession reflects the rich tapestry of the society it serves. This representation is essential in building trust and confidence in the legal system, as individuals from marginalized communities can see themselves reflected in the legal profession. Moreover, racial diversity brings a wide range of perspectives and experiences to the classroom helping combat bias and prejudice. While disturbing, nothing in this decision will discourage BU Law in its commitment to fostering a diverse and inclusive community. BU Law takes pride in welcoming students from various backgrounds to help shape a new generation of lawyers who are equipped to address the complex legal challenges of our diverse society and work toward a more just and equitable future.
— Rebecca Pendleton, Lecturer and Faculty Director, Legal English Certificate Program
A student’s racial and ethnic background should never be the sole factor in an admissions decision, but a blanket prohibition against considering race as one of many factors seems profoundly wrong. I firmly believe that the totality of a person’s lived experience influences their life path and shapes their worldview, and race is undoubtedly a factor. It is critical that BU Law continues to admit students of integrity committed to inclusion, equality, and justice. I fully support BU Law’s efforts to build a diverse, inclusive legal community free of bias, bigotry, and prejudice working to develop attorneys of character who are well equipped to serve the legal needs of diverse population.
— Joseph E. Hunt IV, Lecturer
The SFFA decision is most unfortunate. I work and teach in the world of finance and investment where “the wisdom of crowds” leads to better outcomes, and this decision will not increase our wisdom, but will narrow it through a lack of diversity in decision makers. I also worry that this precedent will be used to attack environmental, social, and corporate governance (ESG) investing in which DEI and other ESG factors are taken into account in investment decisions. Can public and private pension fund trustees be sued for backing minority enterprises? The fallout could be enormous.
— Thomas Murley, LLM in Banking & Financial Law Program
Justice Jackson’s dissenting opinion poignantly addressed so many of the deleterious future effects of the decision in SFFA v Harvard. I’d humbly associate myself with her concerns on the impact of this ruling in the field of healthcare. She rightly notes the significantly disparate outcomes of care rendered to people of color, and the clear benefits of increasing the numbers of well-trained medical professionals who represent the communities we all serve. I share her regrets (as also those predicted by amici) that a result of this decision will be to set back the progress of promoting a truly diverse workforce of physicians, nurses and other essential caregivers. We will need to redouble our efforts to promote tomorrow’s professionals in the wake of today’s outcome.
— Lawrence W. Vernaglia, JD, MPH, Lecturer
If you are mourning this SCOTUS decision, know you are not alone. In this country where people of color are subordinated and experience racial disparities by every measure: education, health, freedom from the carceral state, it is disheartening to see the highest court use the Fourteenth Amendment to limit opportunities for underrepresented students of color and disregard the importance of diversity. From efforts to prohibit antiracist teaching in classrooms to now banning antiracist admission practices: education is currently the prime focus of civil rights retrenchment. Why is this? Because education is powerful. Learning is powerful. Students are powerful. It is here, in higher education, and especially in law schools that we can envision and implement an antiracist future. At BU School of Law, we not only learn what the law is, but examine what the law should be. If you are feeling sad, angry, demoralized: it is okay. Grieve and then dust yourself off. As a law student, you are powerful. You will determine the future of the law and there is work to be done.
— Jasmine Gonzales Rose, Professor of Law and Chair of Policy at the BU Center for Antiracist Research
Earlier this year scholars found that Black taxpayers faced an audit risk five times higher than others. Their conclusions defied a conventional wisdom that because tax returns do not identify taxpayers by race there could be no racial bias in audits. A diverse student body remains the best weapon to combat these dangerous blind spots. The authors of that study have said that it was inspired by the work of one of the few high-profile Black tax law professors, Georgetown’s Dorothy Brown. We never know what will capture the imaginations of our students, but we know that we need different kinds of students in every legal field. Real progress demands bringing together people from different backgrounds, with different experiences and with different interests.
— Steven Dean, Professor of Law
SFFA and Dobbs make clear that constitutional law is malleable. Contrary to popular perception, many important constitutional questions do not have a “right” answer. SFFA and Dobbs also provide evidence supporting a view long-held by political scientists that although Supreme Court justices on some occasions are simply umpires calling balls and strikes, in many critical cases they are policymakers reaching judgments consistent with their ideology. Lawyers may achieve some success pursuing social justice and mitigating the impact of these cases in the courts, but quicker and more significant gains are likely to come through political and social action.
— Michael J. Meurer, Professor of Law, Abraham & Lillian Benton Scholar
The Supreme Court’s SFFA rulings will require law schools to be even more diligent when documenting why and how we work to remediate de jure segregation’s intergenerational harms. The legal field lacks equitable participation from multiple racial identities when compared to other professions, such as medicine. The US government has repeatedly stressed the compelling need for diversity in leadership to facilitate local and national trust—a point the Court endorses. If the US wants its citizenry to trust its legal leaders, law schools must continue to assess and address the effects of current and historically racist laws. If considering race in admissions, law schools will define the specific harm(s) they address by considering race. Schools will articulate previous efforts to address these specific harms without considering race. And, when considering race, will articulate how the school(s) will regularly assess their progress within a defined time period. I understand the dissents’ assertion that this decision will set some schools back in this vital work. But I do not agree that this decision marks an end to the good achieved through affirmative action. We, the leaders of law schools and gatekeepers to the profession, can do the required work, and will do the work. #AtBU-weDO.
— Gerry Muir, Associate Dean of Student Affairs
By turning a blind eye to the existence of racism and to reasonable measures to address it, the Supreme Court has thrown a wrench into efforts to create a more equal society. It is important, however, not to lose hope. The majority opinion states, that “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life.” It warns, however, that “[a] benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination” or “to that student’s unique ability to contribute to the university.” That is, our criteria must be individualized. If we are careful, I believe that we can develop policies that advance social and racial justice by identifying and favoring applicants whose life’s journey indicates progress in overcoming obstacles that are the result of systemic racial biases, whose paths show “courage and determination,” and whose presence would “uniquely contribute to the university.” Individually identifying such students will require time, effort, resources, and creativity, but I believe that there are many such students, enough to populate a large percentage of the next incoming class. So let’s get to work!
— Stephen Marks, Professor of Law, Class of 1960 Scholar, and Chair of the Admissions Committee
This Supreme Court opinion will be remembered for how it attempts to ignore the racism that unfortunately persists in the lived experience of people in the US today. Applicants to colleges and universities will be invited to reflect on the obstacles that have impeded their achievement of their full potential, whether those obstacles be socio-economic circumstances, health challenges, or racial or other identity-based discrimination.
— David Seipp, Professor of Law and Law Alumni Scholar
The field of law is one of the least diverse areas of professional practice. According to the ABA, racial minorities make up less than 15 percent of attorneys, and less than 5 percent of attorneys are Black. These numbers have largely remained stagnant over the last decade and are disproportionately low when compared to the percentage of US population that is comprised of minorities. The Supreme Court’s decision in SFFA v. Harvard was a step in the wrong direction. It was also a wakeup call. As one of few Black women in law and in legal academia, I don’t have the luxury of being silent, not when students who look like me—students who are the hopes and dreams of their ancestors and their communities—will be denied an education. History has shown us that the status quo, if left undisturbed, will not change. Change requires “upward toiling in the night.” We must continue to pursue diversity within law, starting with who has access to legal education. The decision pushed us two steps back, but we must continue to advance if are to shake the foundations of racism and inequity in this country.
— Jade Brown, Associate Clinical Professor
In my view, law schools will need to re-evaluate the metrics they currently use to define merit, and especially those that reproduce large racial disparities, like LSAT and GRE scores. The Supreme Court is making it harder to use race to adjust for the large known disparities in those metrics. I am proud that BU Law has been one of dozens of law schools collaborating over the last five years to develop and study a new tool, called JD-Next. Our research shows that it has great promise as a measurement of learning potential, and some law schools will begin using it for admissions this year.
— Christopher Robertson, Professor of Law and N. Neal Pike Scholar in Health & Disability Law
The majority’s stingy understanding of “race” as skin color demonstrates its ignorance and relative privilege. (It may also provide openings for strategies for inclusion and integration because if that’s all “race” means, there are a lot of other structures and mechanisms on which to rely.) Perhaps it is a kind of stubbornness, akin to Ch. J. Robert’s 2007 sentence “the way to stop discriminating on the basis of race is to stop discriminating on the basis of race.” Pithy sentences and vaulted ideals do not produce justice, however. This an opinion that sets the Court and the legal system up for a kind of failure we’ve last seen in the 1920s. Let it happen. The Court has too much power in our democracy, is exercising forms of supremacy we haven’t seen in a long time. It is time to radically alter our constitutional system in line with what have become our nation’s most celebrated values. As Sotomayor says, “Notwithstanding this Court’s actions, however, society’s progress toward equality cannot be permanently halted. Diversity is now a fundamental American value, housed in our varied and multicultural American community that only continues to grow. The pursuit of racial diversity will go on. Although the Court has stripped out almost all uses of race in college admissions, universities can and should continue to use all available tools to meet society’s needs for diversity in education. Despite the Court’s unjustified exercise of power, the opinion today will serve only to highlight the Court’s own impotence in the face of an America whose cries for equality resound. As has been the case before in the history of American democracy, ‘the arc of the moral universe’ will bend toward racial justice despite the Court’s efforts today to impede its progress. Martin Luther King ‘Our God is Marching On! Speech (Mar. 25, 1965).”
— Jessica Silbey, Professor of Law and Yanakakis Faculty Research Scholar
In terms of access to legal education, this decision does more than place untenable restrictions on the law school admissions process; it denies countless well-qualified persons of color access to that process by significantly limiting their opportunities for admission at the undergraduate level. Restricting not merely who can get into law school, but who can apply in the first place, means we miss out on even further passionate, talented persons of color who would do incredible work in effecting significantly overdue change in the field of law. Where racial and ethnic diversity is already lacking among members of the bar, and more importantly among those in power in the various systems in which we practice, inequity in access to legal education perpetuates inequity in access to justice. As an alumnus and faculty member of this institution, I am proud of BU Law’s perpetual commitment to securing a diverse population of students whose various experiences, opinions, and efforts can help educate us all on how to be better lawyers, contributors to society, and people.
— Brian A. Wilson, Lecturer and Clinical Instructor
We try to prepare our students to serve the world they will encounter. It’s hard for me to imagine what that task would look like if our student body were less diverse in their experiences of racism and other forms of discrimination. We know admissions metrics are highly imperfect, and our value to the school and the profession includes the wisdom that comes with our life experience. It’s the privilege of my lifetime to educate our students as a cohort with wildly different life experiences so that we can learn from each other and so that we can begin to remedy the forces that unjustly close doors to students on the basis of race and other categories protected by the 14th Amendment. I feel a combination of heartbreak and resolve about the task ahead, and to our amazing students who beat the headwinds to be here, I see you.
— Kate Silbaugh, Professor of Law and Law Alumni Scholar
The great satisfaction of teaching lies less in what you give to your students than in what they, in all their diversity, give to you and to each other. For the last 26 years, my students have shared with me their myriad life experiences in relation to the law, often so different from my own. A diverse group of thousands of law students has spurred me to seek out the real, human value of a legal education, and I have tried to teach according to the lessons I’ve learned from those students. Although the Supreme Court’s decision on affirmative action is deeply unfortunate, I know that we at BU Law will not let it rob us of the profound benefits of a student body that represents the widest possible range of human experience, including those experiences rooted in the ongoing American history of racialization.
— Gerry Leonard, Professor of Law
Yesterday’s Supreme Court decision was a painful and sobering reminder that gains in freedom and equality face backlash and resistance. I would encourage students to take heart from Justice Sotomayor’s powerful historical account of government-sanctioned racism and the reasons for affirmative action and from Justice Jackson’s compelling examples of why schools that try to create a diverse class and change course from past discrimination should be supported: “Ensuring a diverse student body in higher education helps everyone, not just those who, due to their race have directly inherited distinct disadvantages with respect to their health, wealth, and well-being.… Students of every race will come to have a greater appreciation and understanding of civic virtue, democratic values, and our country’s commitment to equality.” BU and BU Law have worked to create such a community and I know they will continue to do so. I am disturbed that the Supreme Court has rolled back vital constitutional and civil rights, with Dobbs last year, and with SFFA and 303 Creative this term. But I’m grateful for the powerful voices of justices Jackson, Sotomayor and Kagan to speak to the public about what’s at stake and for expressing a better vision of our constitutional commitments. Today’s dissents are sometimes tomorrow’s majorities. It’s small consolation but these dissents may also inspire political and legal efforts to secure the promises of equal protection.
— Linda C. McClain, Robert Kent Professor of Law
The 150 year history of BU Law’s diverse student body make me proud beyond expression to be a member of the faculty. But that history cannot hide the fact our society has placed innumerable impediments to the realization by African Americans and other racial minorities of their full potential as citizens, students, and professionals. We do not honor the words and aspirations embodied in the Fourteenth Amendment’s Equal Protection Clause by closing our eyes to the reality that racism and the vestiges of slavery and Jim Crow continue to impact virtually every aspect of our society. What disturbs me most about the Supreme Court’s opinion rejecting racial diversity as a valid admissions consideration is the Court’s apparent acceptance of the argument that current admissions practices discriminate against Asian Americans. This is simply not true and illustrates the Court’s blindness to the reality that confronts African Americans every day. What the Court’s decision really did was validate white privilege that preserves an extraordinary preference for the children of donors and faculty members, among others. Luckily, BU Law will continue to attract and enroll a diverse student body despite the Supreme Court’s efforts to prevent us from living up to our heritage.
— Jack Beermann, Professor of Law
You are not alone. This country has long failed to live up to its most basic promises and guarantees. This Supreme Court and this opinion make our work more difficult. But no one fighting for a truly multiracial democracy is going to stop. We are not going to stop.
— Jonathan Feingold, Associate Professor of Law
Diversity in the law school classroom matters because it has been too long that overwhelmingly white voices have been enabled to discuss, learn, teach, drive, and make the law. Black and Latine people remain woefully underrepresented in the legal profession. As one of three Latine faculty at the law school and previously one of three Latine public defenders in my office in Washington, DC, I know the sense of isolation that comes with underrepresentation. Black, Latine, and indigenous voices are essential for complete and intellectually honest discussions in the classroom about the law, power, entrenchment, and ultimately, justice.
— Karen J. Pita Loor, Clinical Professor of Law
This week, in its decisions striking down affirmative action programs and anti-discrimination protections for LGBTQ+ persons, the Supreme Court has extended the havoc begun last term in Dobbs (overruling Roe and Casey). These decisions, though hardly surprising, are deeply dismaying. It was bad enough—before the three Trump justices turned the Supreme Court into a 6-3 conservative juggernaut—when conservative justices like Scalia pugnaciously dissented against the Court’s recognizing basic liberties for historically subordinated groups. It is even worse now, when the Court goes further and repeatedly strikes down measures adopted by government and private institutions seeking to secure the status of equality for those historically subordinated groups. Going forward for the next generation or more, liberals and progressives must turn more to legislatures than to federal courts, not only the national legislature but also state and local governments. They also need to turn to state courts interpreting state constitutions to pursue constitutional justice. Moreover, I encourage liberals and progressives to learn from and emulate what conservatives did over the past two generations through resisting the Supreme Court decisions with which they vigorously disagreed and fundamentally moving the constitutional culture in their direction through tireless advocacy.
— James E. Fleming, Honorable Paul J. Liacos Professor of Law
I join my colleagues in expressing my deep disagreement with this judicial opinion. It downplays the structural nature of race-based prejudice and adopts an idea of colorblindness which is now falling in disrepute even in countries that once cherished it. To those of us who have been cheering the increasing attention to ‘equality data’ in Europe, this opinion appears not just wrong but also strangely ahistorical.
— Daniela Caruso, Professor of Law
Justices Sotomayor and Jackson are right about American history not ever being “colorblind.” Justices Roberts and Thomas were especially wrong in their dodging of the historical evidence. Sotomayor had an enormous amount of originalist historical evidence of race-conscious remedies from the 1860s. Thomas conceded to Sotomayor that, indeed, the 1866–67 Congress that adopted the 14th Amendment also used racial classifications (anti-subordination, to protect Blacks). Thomas responded that those classifications could have been compelling and narrow enough to withstand strict scrutiny, but that is an ahistorical argument, using a 20th century doctrine. And it is non-responsive to Sotomayor’s evidence against their “colorblind” assertions. This is pseudo-originalism, working backward from a conservative result, disregarding or dismissing contrary historical evidence. Jackson concluded correctly: “Our country has never been colorblind.” And the Roberts Court is increasingly inconsistent and ideologically right-wing.
— Jed Shugerman, Professor of Law
As we prepare our future leaders, it’s critical that they represent our country—not just those who have wielded power historically, but everyone who has the talent and the drive to make a difference in our world. We are equipping our students for leadership. Diverse leaders matter. It matters that our students are diverse.
— Stacey Dogan, Professor of Law
In law school I recall learning the history of courts of law and courts of equity, specifically how the courts of equity righted wrongs that the formalities of the law courts did not recognize. In today’s parlance, “judge-made law.” Courts using their equity powers have been responsible for many rights we take for granted today, or did take for granted. This decision had me thinking of one of the “Maxims of “Equity:” “Equity will not suffer a wrong to be without a remedy.” To me, the Supreme Court surrendered its inherent and constitutionally authorized powers and duties as a court of equity and rejected this fundamental maxim of equity. Apparently, hundreds of years of slavery, Jim Crow, and discrimination are a wrong for which there is no remedy in our laws. We should be sad and ashamed.
— Tom Murley, Lecturer, LLM in Banking & Financial Law Program
It is absolutely vital for BU to have a diverse student body. If justice is to be achieved, it must be for all. This can’t be done without ensuring that that everyone, including groups of people the law has marginalized and failed to protect, are a part of the foundation of our legal system and legal education. Whatever the impact of this ruling, it will not change our commitment and resolve for a diverse student body and more just society.
— Woodrow Hartzog, Professor of Law
As Justice Jackson wrote in her dissent, the “majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat. But deeming race irrelevant in law does not make it so in life.” We know that race matters—your life experiences matter, your personal identity matters, your inclusion in our law school community matters. The Court’s decision undermines democracy, equality, and much-needed efforts to reallocate power more equitably. As lawyers and law professors, we are obligated to push back against this latest assault—to foreground conversations about race, racism, equity, and inclusion—and ensure that our classrooms and courtrooms continue to be diverse.
— Sarah Sherman-Stokes, Clinical Associate Professor of Law and Associate Director of the Immigrants’ Rights and Human Trafficking Program
Statement by BU Law Experiential Faculty
We, as members of the Boston University School of Law experiential faculty, express our strong opposition to the Supreme Court’s decision in Students for Fair Admissions (SFFA) v. University of North Carolina and Students for Fair Admissions v. Harvard University. The Court’s decision is a crushing blow.
As practicing lawyers, we are intimately aware of the need for, and value of, diverse voices within the legal profession. According to the American Bar Association, only 5 percent of lawyers in the United States are Black, although 13.4 percent of the US population identifies as Black. Only 5 percent of all attorneys are Latinx, although 18.5 percent of the US population is Latinx. Less than 1 percent of lawyers are Native American. We acknowledge that legal education shapes the voices in our courtrooms, boardrooms, and legislative hallways. It shapes who has access to power and how power is distributed in our society, and this decision is a formidable obstacle to increasing meaningful representation within the legal profession.
Law schools are the gatekeepers of the legal profession and have a profound responsibility to correct existing power imbalances and inequalities. We are deeply committed to nurturing the development of a diverse body of law students at BU Law. We call upon legislators, policymakers, and universities to acknowledge the significant, negative impact of the Court’s decision. We also commit ourselves to work with BU Law students, university leaders, and others to develop new, robust measures to ensure equity and diversity in the admissions process. In this moment, it is important for us to be vocal as the Court strips away important rights.
