How Far Can One Supreme Court Ruling Stretch?

Three years ago last month, the U.S. Supreme Court ended affirmative action in college admissions. The Trump administration has since turned this narrow ruling into a blunt tool to go after diversity, equity and inclusion programming and even initiate campus antisemitism investigations that have nothing to do with admissions at all. And now that the Supreme Court has issued a ruling on trans students’ participation in sports, could the administration be further emboldened to target gender in a similar way?

The June 2023 ruling in Students for Fair Admission v. Harvard said race-based admissions programs violated Title VI of the Civil Rights Act of 1964 and the equal protection clause of the 14th Amendment. As expected, colleges made sweeping and immediate changes to their admissions policies. Since then, researchers have reported that underrepresented students have “cascaded” from highly selective institutions to less selective state flagships and then to open-access regional and community colleges.

Less expected from the landmark SFFA ruling, though, is how the Trump administration has extended it. Any perceived racial or ethnic preferences in higher ed, including funding for Hispanic-serving institutions and race-based scholarships, risk being accused of violating the affirmative action ruling. One law firm described the administration’s approach as “waving the SFFA decision like a sword.” The stakes are high: Colleges found in violation of civil rights law could lose access to federal student loans.

In February last year, the Education Department sent what came to be known as the Valentine’s Day Massacre—a Dear Colleague letter to the sector that deemed all DEI activities and programming illegal. It was one of the first and most effective uses of the SFFA ruling to condemn DEI. The Department of Education leaned heavily on the line in Chief Justice John Roberts’s opinion that “an individual’s race may never be used against him” and “may not operate as a stereotype” in governmental decision-making.

The letter said, “The law is clear: treating students differently on the basis of race to achieve nebulous goals such as diversity, racial balancing, social justice, or equity is illegal under controlling Supreme Court precedent.” It didn’t matter that a judge invalidated the letter and the administration dropped its appeal against her ruling earlier this year. The chilling impact of its vague directive had already spread across the sector: Many higher education institutions shuttered DEI offices, changed their teaching practices and withdrew their support for student affinity groups.

ED also relied on the guidance to investigate 45 institutions for being out of compliance with civil rights law by participating in the PhD Project, a nonprofit that connects prospective doctoral candidates in business from underrepresented backgrounds with academic networks. Earlier this year, 31 of those institutions reached resolution agreements with the department to end their participation with the nonprofit.

The administration’s tactic is effective because it holds the trappings of credibility without providing any clarity on what is actually illegal. And though it doesn’t link its allegations of campus antisemitism to SFFA, the administration continues to conflate the two in its discrimination investigations at Harvard, Columbia and other wealthy private institutions. In a release announcing two new Office for Civil Rights probes into discrimination at Harvard this March, Education Secretary Linda McMahon in the same breath accused Harvard of both violating the admissions ruling and allowing rampant antisemitism on campus.

“Harvard University should know better. Its name will always be tied to the landmark Supreme Court case that found sweeping racial discrimination in admissions and the campus has been in the spotlight for tolerating egregious antisemitic harassment for years now. OCR will investigate these complaints thoroughly,” she said.

Legal scholars say the administration’s use of SFFA is a “distortion” but note that only Congress can truly rein it in. They suggest lawmakers put limits on how SFFA can be applied and enshrine protections from retaliatory funding terminations. But legislative gridlock and heated midterm election campaigns make it unlikely that these protections will get any of Congress’s attention any time soon.

The sector could soon seek similar protections against last week’s Supreme Court decision on trans athletes. The ruling was similarly narrow in scope, but it left the door open to broader applications by defining sex in strictly binary terms. The court may have handed the administration a new sword to wave at campus inclusion policies and threaten federal funding cuts.

The ruling only applied to states’ ability to exclude transgender athletes from competing on women’s and girls’ sports teams, but McMahon said, “We look forward to ensuring that every educational institution in America abides by the law of the land.” In light of the administration’s liberal use of SFFA, it doesn’t take much to imagine a similar attempt to extend this ruling beyond athletics, to, say, bathrooms, housing or LGBTQ+ activities.

Even though the Dear Colleague letter was thrown out by a judge, guidance from the Department of Justice that cites SFFA as a reason colleges cannot consider race in any practices remains in place. That means colleges’ only real recourse is to wage lengthy and expensive legal battles while they wait for Congress to step in. The only option left for the ones who don’t have the cash to fight in court is to hold their nose and acquiesce for the next two-plus years. Meanwhile, the administration will continue to push the limits of what a narrow decision on college admissions—any maybe trans athletes—can mean.