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Statement of the National Association for Equal Opportunity in Higher Education on Supreme Court Decision in Students for Fair Admissions, Inc. vs Harvard; and Students for Fair Admissions, Inc. vs University of North Carolina, et al.

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Today’s decision by the US Supreme Court in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, and Students for Fair Admissions, Inc. v. University of North Carolina,, prohibiting the use of race as  one of many factors in college admissions to ensure an excellent, diverse student body, and a robust exchange of ideas and experiences, is a major setback for higher education, democracy, and justice in America. It was anticipated, however, in this climate of ultra-partisanship and increasingly un-democratic actions.

It defies logic that one would have a disease, and try to cure it but be prohibited from focusing on the disease itself . If someone has cancer, for example, focus must be on a cancer-specific remedy.  De jure or intentional race discrimination is the disease that has resulted in vestigial impacts of the disease today, in the form of race deficits in education, employment, socio-economic strata, wealth, health, housing, environments, justice, and so many other arenas. Since race exclusion is  a major cause of  the racial deficits in America, the problem must be attacked by considering race. among a host of other factors the Supreme Court has found acceptable under the U.S. Constitution,  time and again, under right-leaning-majority Courts and left-leaning-majority Courts. To remedy the race deficits flowing from the race-based intentional exclusion of African Americans,  and the  vestigial impact on their progeny requires a race-based remedy.  To cure race and ethnicity-deficits in America, we must root out its causes and cut down its branches. We must consider race in remedying the race deficits in America.

The Court argues anew that which the High Court addressed, and provided an exception decades ago in Bakke and  succeeding cases. The High Court found in those cases in  which an entire race of people was denied access to the opportunities and bounty of America based solely on their race,  remedial actions that consider race among other factors, could be considered in remediating the de jure discrimination and its lingering vestigial impacts if the remedy is narrowly tailored to meet a compelling governmental interest.

It defies logic to suggest that the race deficits in America should be addressed on a case-by-case-basis, by the thousands of Black students who seek admissions to colleges that understand the educational value of a richly diverse student body and take affirmative steps to seek out, enroll, and retain a diverse student body. Such an approach is as counter intuitive as it was to attempt to address coronavirus on a case-by-case basis, months on end, while tens  of thousands of Americans were being compromised by the disease, and worse.

HBCUs are equal opportunity institutions and were founded for those who were left out of the American higher education systems because of their race. They are non-racial, non-MSI, mission-based institutions that have been educating Blacks and disproportionate percentages of others who were locked out of participation in American education institutions based on race, ethnicity, socio-economic status, religion, and other non-bona fide criteria. They have also become the institutions of choice for increasing numbers of students and families who believe in the values of HBCUs: excellence, faith, family, fortitude, service and leadership. With no race or no ethnicity criterion, HBCUs on average have student bodies that are more than 30% non-Black.

Many universities have more students drawn from the top 1% of the income distribution than the bottom 40% of the income distribution, e.g., example, University of Virginia, Washington University- St. Louis, University of Michigan-Ann Arbor. HBCUs have the highest share of students from families with incomes in the bottom 20% of the income distribution and do better than average for American colleges of moving those students to the top 20% of the income distribution. HBCUs are the best return on higher education dollars. Just 3% of American colleges are   graduating I on 5 Black engineers, 42% of Blacks with advanced degrees in STEM, and 1 in 7 Black medical school graduates, and more than 50% of Black law school graduates. See Blacks in STEM: Understanding the Issues, by Dr. William E. Spriggs, NAFEO Senior Economist.

As the nation’s only national membership and advocacy association for all HBCUs and PBIs dubbed “The Voice for Blacks in Higher Education,” NAFEO, for more than forty years has represented the HBCUs in litigation, to encourage more equitable resource investments in HBCUs aligned with their missions and return on investments. It has provided voice for the HBCU Community in diversity cases, challenged the disparities in funding between public historically White higher education institutions and public historically Black institutions.  NAFEO deplores the Court’s action today and recommits to continuing to educate, agitate, collaborate,  motivate and forge ahead with the modification of policies that are inimical to diversity and democracy. Having fostered diverse student bodies without consideration of race or ethnicity for more than forty years, NAFEO vows to continue providing  guidance to the higher education community, policy makers and shapers with regard to best practices.   NAFEO will use today’s set-back as a set-up for a come-back  and a restoration of the law as it existed  prior to today’s Students for Fair Admissions, Inc., Supreme Court decisions, threatening excellence and diversity in higher education, threatening to retard efforts to close the racial deficit in higher education, employment, socio-economic status wealth, health, housing, and justice.

NAFEO is intrigued by the notion of using “lineage” as an immediate non-racial substitute for “race consciousness,” to root out the disease of  race deficits primarily resulting from  de jure or intentional race discrimination.

NAFEO thanks and aligns with the extremely thoughtful and compelling dissenting opinion of the newest member of the U.S. Supreme Court, Justice Jackson, also the first Black female Supreme Court Justice. NAFEO will immediately lead its members, policy shapers,  and others in discussion about how to broadly position and leverage much of what Justice Jackson included in her dissenting opinion. It aligns  with that which NAFEO included in its Supreme Court amicus curiae brief  in the Bakke case, on behalf of NAFEO, the HBCUs and PBIs,  National Black Caucus of State Legislators, and the National Bar Association, referenced  in the opinion of Justice Thurgood Marshall. We will also lead discussions about the pros and cons of advancing the notion of using “lineage” as a substitute for race in diversity cases.  Stay tuned, and join us!

Lezli Baskerville
President & CEO
National Association for Equal Opportunity in Higher Education (NAFEO)
Member, Biden-Harris Commission on Advancing Educational Equity, Excellence, and Economic Opportunity for Black Americans
20-plus years as Constitutional Justice Lawyer; Equal Educational Opportunity and Equal Employment  Opportunity Litigator
(202) 552-3300


The National Association for Equal Opportunity in Higher Education (NAFEO) is the nation’s only national membership association of all of the nation’s Historically Black Colleges and Universities (HBCUs) and Predominantly Black Institutions (PBIs). Founded in 1969, by the presidents and chancellors of HBCUs and other equal educational opportunity institutions, NAFEO is a one of a kind membership association representing the presidents and chancellors of the public, private, independent, and land-grant, two-year, four-year, graduate and professional, HBCUs and PBIs.

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