Implications for Race-Based Scholarships in the Wake of SFFA

December, 2023

This past summer (June 29, 2023) the United States Supreme Court overturned 45 years of precedent and ruled that the University of North Carolina and Harvard University’s affirmative action programs violated the Equal Protection Clause of the Fourteenth Amendment by considering race in their admissions process–effectively ending affirmative education in higher education admissions. ¹

The Court laid out four primary reasons for this decision. 1) The schools’ compelling interests in the educational benefits of diversity “cannot be subjected to meaningful judicial review.” ² 2) The schools’ admissions programs “fail to articulate a meaningful connection between the means they employ and the goals they pursue.” ³ 3) The schools’ admissions programs require stereotyping which is contrary to the “core purpose” of the Equal Protection Clause. ⁴ 4) The schools’ admissions programs lacked a “logical end point” consistent with Grutter’s 25-year sunset provision.⁵

While discussing these justifications, the court focused solely on admissions but did not expand on the subject of race-based scholarships. This exclusion of race-based scholarships prevents any definitive understanding about their future in a post-affirmative action educational landscape. Despite this uncertainty, several universities have taken action to revoke or eliminate race-based scholarships. Following the Court’s decision, Western Illinois University emailed 300 students of color informing them that their scholarships were revoked.⁶ Missouri Attorney General Andrew Bailey instructed the University of Missouri, “All Missouri programs that make admitting decisions by disfavoring individuals based on race—not just college admissions, but also scholarships, employment, law reviews, etc.—must immediately adopt race-blind standards.”⁷ [ix] Unlike Western Illinois University, the University of Missouri stated that they would “honor our financial aid commitments that have already been awarded to our returning and incoming students,” but that scholarships that used race/ethnicity as a factor would be discontinued.⁸

Unlike the swift action by some relevant actors, others are reluctant to apply the SFFA decision to race-based scholarships. Justin Draeger, president and CEO of the National Association of Student Financial Aid Administrators, stated that the “the SCOTUS opinion was squarely focused on institutions’ admissions policies.”⁹ He urged schools to be patient noting that “the highest court in the country took months to deliberate on this issue, and schools should similarly consider any implications on financial aid.”¹⁰ David Hawkins, chief education and policy officer at the National Association for College Admission Counseling, noted that although the opinion didn’t discuss financial aid directly, considering the “litigious nature of the folks who are in opposition to race-conscious admissions, it seems likely to move that direction once this case is done.”¹¹ Hawkins’s view is supported by history. After the 2003 rulings in Grutter v. Bollinger and Gratz v. Bollinger that actually upheld race-conscious admissions, universities including but not limited to Williams College, Indiana University, and Carnegie Mellon University opened up scholarships previously intended for minority applicants to applicants of all races.¹²

Despite this pessimism and uncertainty related to the future of race-based scholarships, the Court emphasized 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, be it through discrimination, inspiration, or otherwise.”¹³ [xv] This specification may create opportunities for universities to employ other strategies to ensure that their scholarship programs are not discriminatory while still considering race. One such strategy, known as pool and match, entails a college pooling funds from multiple donors with some common scholarship criteria into a single pool.¹⁴ When first narrowing down the list of potential scholarship winners, the school would use a set of race-neutral criteria to determine eligible scholars. Then, they would choose which students from this list best fit the individual’s donor’s more specific criteria such as requirements that all who benefit from the scholarship belong to a certain race.¹⁵ That being said, the Court specified that “universities may not simply establish through application essays or other means the regime we hold unlawful today,” but a student can benefit by describing how their “heritage or culture motivated him or her to assume a leadership role or attain a particular goal” but it “must be tied to that student’s unique ability to contribute to the university.” [xviii] The Education Counsel, an education consulting firm, acknowledged that this strategy of pooling and matching would still be sustainable for the limited context of privately endowed aid, but that even with general financial aid, “there are distinctions between admissions and aid decisions that go precisely to the Court’s flawed logic by which it characterized admissions as a ‘zero sum game’”.¹⁶ While there is a finite number of seats for a school’s entering class as there is a finite number of scholarships, using the zero-sum argument as justification to eliminate race-based scholarships would also justify the elimination of scholarships based on other criteria such as vocational interest—which this decision does not intend to do.

The Court’s “colorblind” approach to affirmative action is consistent with the false moral superiority often espoused when using the term. To be “colorblind” does not mean they are avoiding stereotypes or racial preferences but that they are choosing to ignore the history of actions intended to keep people of color in a lower caste than white Americans. Whether one focuses on slavery, redlining, or Jim Crow, being “colorblind” in a modern world serves only as a false posturing of moral superiority instead of recognizing the very real differences between how people of different races have been treated and how this varied treatment has affected their prosperity. This is a sad step back in a country that was not even remotely close to eradicating the racism that Grutter hoped would be gone in 2028. Affirmative action may be dead in higher education, but the system of oppression existing within it is alive and well.