Penalver and Greenfield on the First Amendment right of (some) religious universities to use racial preferences

Profs. Kent Greenfield and (MOJ-alum) Eduardo Penalver have an op-ed, at The Hill, called "How the First Amendment Can Save Affirmative Action."  They contend that "the robust deference the court extended to the business owner in [303 Creative] may offer a pathway for certain private religious universities to continue considering race in their admissions decisions. "  (It's not quite right that the Court extended "deference" to the business owner; it took as given the facts stipulated to during the litigation below.)  In my view, the piece is not persuasive, and fails to account for the facts in both 303 Creative and the Harvard/UNC racial-preferences case. 

First, it is not the case that "the Supreme Court’s conservative supermajority gutted affirmative action in college admissions by equating it with discrimination[.]"  The Court's decision does not outlaw "affirmative action", nor does it mandate strict "color-blindness."  Instead, it reviewed carefully the extensive evidence that the two institutions in question engaged in clear -- indeed, obvious and in some cases quite vulgar -- racial discrimination.  Nothing in the Court's decision prevents universities from taking "affirmative action" steps to engage in outreach to disadvantaged and marginalized students.  But, they cannot do what Harvard and UNC were doing, which was, quite obviously, not diversity-seeking holistic-review, but percentage-pursuing racial discrimination.

Second, it is misleading to write that "[t]he 303 Creative ruling added to a string of opinions offering First Amendment-based exemptions from generally applicable laws to Christian conservatives[.]"  The Court has not granted First Amendment (RFRA is different) exemptions from "generally applicable laws" (outside the ministerial-exception context), or from non-discriminatory government action and the "string" of exemptions cases have certainly not been limited to "Christian conservatives[.]"  (See, e.g., O Centro, Lukumi, Holt v. Hobbs, etc.)    

Third, the authors state that "[t]he creation of diverse communities of students, faculty and staff embodies and expresses our institutions’ Jesuit and Catholic religious commitments."  But again, these institutions remain free to create "diverse communities"; but, so long as they accept public funds, they need to find methods -- and, surely, other methods are available -- other than crude racial stereotyping and race-based discrimination.  (It seems unlikely that these institutions and authors want to claim a religious justification for racial discrimination in hiring and admissions.)  The Court did not disapprove of "diversity" as a goal; it said, instead, that clear racial discrimination is not justified by a diversity-seeking goal.  What's more, it is not plausible to contend that most elite institutions' admissions programs (let's put aside, for present purposes, the two authors' institutions') are designed or implemented in ways that aim at "diversity", richly understood.   

Finally, the authors write that "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."  But again, the Court did not impose a "colorblindness requirement".  Also, outside the ministerial-exception context, there is no doctrinal basis for limiting this call to "religious" institutions.  And, the authors suggest no reason for the assurance that the proposed "carve-out" would not "cover all (or even most) colleges and universities[.]"

I am, of course, deeply committed to (a) the importance of Catholic educational institutions identifying, embracing, and attending carefully to their meaningfully distinctive Catholic characters and missions and to (b) enhancing educational opportunities and freedom for disadvantaged people.  Catholic universities need to do (much) better on both of these fronts.  But the particular practices invalidated in the FAIR case are not necessary to pursue schools' Catholic mission and, in my view, should not be embraced or justified as expresions of that mission.