The Chilling Effect of SFFA v. UNC/Harvard on Race-Based Affirmation by Tax-Exempt Charities

Abstract

Recently, the Supreme Court decided in SFFA v. Harvard/UNC that colleges are restricted in their use of race-based affirmative action in admissions. Post-SFFA, many have incorrectly suggested that this means that race may never be considered in admissions. This Article asserts that this expansive view of SFFA is incorrect and leads to a chilling effect on affirmative action by colleges. However, instead of simply asserting that SFFA permits some considerations of race in admissions, the Article goes further by arguing that SFFA does not even apply to admissions by some private colleges. For instance, private colleges that are recipients of federal financial assistance (FFA) must abide by SFFA because of Title VI, which is essentially synonymous with the Equal Protection Clause. But what if a private tax-exempt actor decided to forgo FFA? Could such private actor then lawfully use race-based affirmation action in light of SFFA? The Article concludes that, even after SFFA, colleges may continue to consider race in admissions to a limited extent. Further, private tax-exempt charities that don’t receive FFA are not subject to SFFA’s restrictions. Thus, private charities may use race-based affirmative action in admissions—even if such use goes beyond what’s permitted by SFFA.