How the First Amendment can save affirmative action  

A day after the Supreme Court’s conservative supermajority gutted affirmative action in college admissions by equating it with discrimination, the same justices broadened the First Amendment right of religious business owners to choose whom they will serve, even when those choices might otherwise constitute discrimination.

Though both rulings represented major conservative victories, most observers treated them as disconnected from one another. The first asked whether universities can consider race in admissions, the second whether a Christian web designer can refuse to build wedding websites for same-sex couples. But, ironically, the robust deference the court extended to the business owner in the second case may offer a pathway for certain private religious universities to continue considering race in their admissions decisions.  

To understand the connection between the two cases, recall that the affirmative action ruling involved two universities. In the case against the University of North Carolina, the court held that the equal protection clause of the Fourteenth Amendment — which only applies to state actors — barred that public institution from using race in admissions. But the case against Harvard, which is private, turned on the meaning of Title VI of the Civil Rights Act of 1964, which bars “discrimination” on “the ground of race” by any recipient of federal funds.

For over half a century, the Supreme Court had declined to equate affirmative action with prohibited “discrimination.” The Harvard ruling changed that.  Affirmative action in admissions now amounts to a violation of the Equal Protection Clause and “discrimination” under Title VI. 

The following day, in 303 Creative v. Elenis, the court exempted website designer Lorie Smith from a Colorado civil rights statute prohibiting discrimination. Because the websites she designs for her customers constitute her own protected expression, the court said, the First Amendment allows her to decide what kind of jobs she will take, even if her decision would otherwise amount to discrimination under the Colorado statute. The 303 Creative ruling added to a string of opinions offering First Amendment-based exemptions from generally applicable laws to Christian conservatives, including from anti-discrimination laws.

Over the past few years, the court has allowed a range of claimants, from the Boy Scouts to Hobby Lobby to the Little Sisters of the Poor, to sidestep a wide array of legal mandates, from the Affordable Care Act to anti-discrimination laws, in order to protect their freedom of expression and the free exercise of their religion.   

If Lorie Smith’s expressive right to decide which websites she will design overrides Colorado anti-discrimination laws because they interfere with the expression of her religious beliefs, can a private faith-based college’s expressive or religious freedom to determine whom to educate override the Supreme Court’s redefinition of discrimination under Title VI? 

The universities’ constitutional interests arise from the freedom of association or freedom of religious exercise rather than from speech, but that should not matter. As Justice Neil Gorsuch wrote in the 303 Creative opinion, the First Amendment “equally” protects freedom of association as a kind of speech. And when an institution’s actions have been rooted in religious faith, the Supreme Court has been particularly deferential in recent years.  The admissions decisions of religious universities to create diverse student bodies are expressive of those schools’ values  in ways that would seem to merit the same kind of protection from state interference the court has granted in cases like 303 Creative. Although virtually all of those cases have involved conservative Christian claimants, the expression of progressive religious beliefs should be entitled to no less deference.   

Our two institutions, Seattle University and Boston College, are Jesuit universities that seek to construct diverse and inclusive academic communities. Founded in the late 19th century initially to educate Catholic immigrants who were frequently excluded from other institutions of higher learning, over time we came to understand our missions more broadly as serving all of those who have been excluded from higher education and promoting a more just society by repairing the wounds caused by pervasive racism and unequal opportunity.  We also understand our mission to be the education and formation of our students as whole persons in all of their complex identities.  The pursuit of this kind of holistic education requires a student body that reflects the rich diversity of humanity.   

The creation of diverse communities of students, faculty and staff embodies and expresses our institutions’ Jesuit and Catholic religious commitments.  Admissions decisions and other practices aimed at achieving these goals therefore reflect some of our deepest beliefs. For us, and for many faith-based universities, a strict colorblindness requirement has the potential to interfere with our ability to construct and maintain the kinds of educational communities that reflect these foundational principles. Unlike Lorie Smith, who defines her business’s values by the messages (and, consequently, the customers) she wants to exclude, we define ourselves and express our values through those we want to include.

The Supreme Court has repeatedly said that rights of religious and associational freedom protect that kind of expression against state interference, including the kind of governmental micromanagement of admissions practices under Title VI envisioned by the Supreme Court in the Harvard case.   

Some of these arguments, particularly those rooted in the First Amendment’s protection of expressive associational freedom, might extend to certain mission-driven secular universities as well. Consider Berea College in Kentucky. Founded by abolitionists, it still operates under a charter prioritizing multiracial education for poor students from Appalachia. A colorblind Berea is a different Berea.

Other prominent institutions — Bates and Oberlin for instance — were also founded by abolitionists. To force these schools to become colorblind in ways that impair their ability to admit the very populations they were created to serve would be to coerce them to violate their foundational principles. If expressive freedom protects a web designer’s refusal to create a website on the grounds that would violate her deeply held beliefs, it should also protect the ability of a mission-driven university to decide how to craft its admissions policies to express the foundational values that have guided its operations for 150 years.  

After the Harvard ruling, President Biden announced plans to issue guidance within 45 days regarding what options remain for schools seeking to build diverse student communities. In that guidance, the Department of Education should announce that it will not enforce any colorblindness requirement against mission-driven schools where doing so would violate their foundational values, particularly when those values are rooted in religious faith. This carve-out would not cover all (or even most) colleges and universities, but it would protect the expressive and religious freedoms of an important and vibrant segment of American higher education. 

Kent Greenfield is a professor of constitutional law at Boston College.  Eduardo Peñalver is president and professor of Law at Seattle University. The views expressed in this opinion essay are theirs alone and do not necessarily reflect the views of their institutions.