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Abstract: The Supreme Court last Term issued its monumental decision in Students for Fair Admissions v. Harvard, which struck down a pair of race-conscious admissions policies as unconstitutional, upending a half-century of affirmative-action precedent. But importantly, SFFA did more than simply outlaw the universities’ schemes. Rather, it reshaped entirely the doctrine and narrative set forth in the Court’s earlier affirmative-action cases, offering a diametrically opposite view on the role of race – and racial discrimination – in modern America. On SFFA’s telling, an explicit consideration of race in schooling, even one meant to benefit racial minorities, was itself discrimination, an impermissible violation of the Equal Protection Clause’s mandate of total “colorblindness.” In this way, the Court told a story of a new, post-racial America, one in which racial classification may be more pernicious than racial remedy.
Critically, though, this sea change has not been the only such shift in the Court’s recent education jurisprudence. Across the same period, the Court also has transformed its approach to evaluating the role of religion in schooling, from religious exercise in educational institutions to state funding of religious activity. Indeed, for the better part of the 20th century, the Court consistently deployed the First Amendment’s Religion Clauses to enforce a “wall of separation” between church and state – or, church and public school. With the advent of the Roberts Court, however, this view changed, as the Court inverted its Religion Clause jurisprudence in the religious-schools context. Over this time, for example, the Court would issue a series of decisions that, bit by bit, permitted religion to creep into the public educational space: upholding voucher programs that siphoned funds to religious schools; permitting public funds to flow directly to sectarian institutions; and requiring districts to allow state officials to engage in public prayer.
But these race and religion shifts in the Court’s education jurisprudence have not occurred in isolation. As I argue in this reflection, one cannot properly consider the impact of Students for Fair Admissions, and the post-racial change it portends, without taking account of the Court’s increasing allegiance to and protection of religious – primarily Christian evangelical – interests. Instead, examining these movements together reveals that while these changes have taken place in chronological parallel, they have moved in opposite, or antiparallel, substantive directions. Put differently: on one hand, the Court has used its religious-schools shift to carve out increasing protections for religious exercise, crafting a narrative that the true minority in American life is the religious observer. On the other, the Court has used its race-consciousness jurisprudence to shrink protections for racial minorities, crafting a counter-narrative that attempts to erase “race” entirely.
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