Last year, the Supreme Court ruling in the SFFA prohibited race-conscious affirmative action in higher education. Accepting arguments that consideration of race in admissions was a sin equal to historical segregation, the majority wrote that without affirmative action, students will not be judged by the “color of their skin” and instead only by their “unique ability to contribute to the University.”
Much has been written about the flaws inherent to this line of reasoning. The Thirteenth, Fourteenth, and Fifteenth Amendments stand for the principle that the government must actively democratize opportunity for groups previously oppressed or disenfranchised. Previous decisions identifying race-conscious reform as “racist,” such as the 1883 Civil Rights Cases, have long since entered the anticanon of American law.
Justice Ketanji Brown Jackson’s SFFA dissent echoed these concerns, stating that “if the colleges of this country are required to ignore a thing that matters, it will not just go away. It will take longer for racism to leave us. And, ultimately, ignoring race just makes it matter more.” Accordingly, it was often said that in the post-SFFA world, accomplished minority applicants will often lose to other prospective students for reasons related to access, class, and ancestry. This prediction has now become an unfortunate reality.
At Harvard Law School, there has been a 50% decrease in the number of Black students for the class of 2027. With this marked decline, the ruling has broken something fundamental about the experience of attending this law school.
The African-American experience has always been intimately tied to the development of American law, often playing a role in both its most maligned and most revered moments. Making sense of this jarring corpus with a smaller community is a tall order in and of itself, made even more difficult with the added expectation that these students provide a “Black perspective” in class discussions. The demographic shift places significant pressure on those few Black students present to represent the Black community, in all its variety and complexity, during conversations about the law.
This reduction also threatens the role Black J.D. ‘s have historically played in shaping the culture and institutions of Harvard Law. Luminaries such as Charles Ogletree (founder of Harvard’s Criminal Justice Institute) and Governor Deval Patrick were student leaders in their time at HLS. At the publication of this piece, all three honors societies at HLS are led by Black students, as well as one of the co-presidents of student government. These scholars have thrived in the challenging environment while changing the law school for the better in their time here.
Additionally, with respect to Harvard and other “elite” law schools, a rollback of affirmative action tends to narrow the possible universities potential law students can come from. This would be a crushing loss. Several remarkable Black HLS alumni attended small liberal-arts colleges and other less endowed universities, such as Robert L. Wilkins (Rose-Hulman Institute of Technology), Ted Wells (Holy Cross), Bryan Stevenson (Eastern University).
Many of these figures later dedicated their careers to public service in some fashion (Wilkins, DC Cir. Judge; Stevenson, founded Equal Justice Initiative). By making access to legal education more difficult for those of marginalized demographics, society will lose out on changemakers with novel approaches to complex, pressing problems.
HBLSA regularly holds office hours to advise prospective applicants to HLS, where we meet the incredible students we risk losing out on in the wake of the SFFA ruling. Many already have launched nonprofits, succeeded as athletes, been public servants, and led movements in their communities. They have displayed excellence inside and outside of the classroom, yet the size of this current class indicates that many of them will be turned away.
We acknowledge the great advantages we, as Harvard law students, enjoy. In many ways our experience is not reflective of the average lawyer-in-training, but it is nonetheless a part of the broad tapestry of law schools throughout the country. We address the public here merely because we have been privileged with their attention. Regarding the severe decline, we speak not because our experience here is unique, but because we fear it is common.
Non-white, low-income, and differently abled individuals have always struggled for representation in the legal field; over the last several decades marginalized groups have earned a precarious foothold in this profession. It is these groups who suffer the most when the law is unjust. Their presence has challenged parochial approaches to the law and addressed flaws latent in the legal system, and their absence would be a grievous wound.
A rigid, uninformed legal community provides shaky foundations for civic health. It is of the utmost importance our law schools do not turn away talented, dedicated future lawyers based on outdated notions of merit. Great lawyers emerge from all law schools and all walks of life, and it should be a priority to ensure that every institution of higher learning creates a diverse and comprehensive educational environment.
We call on Harvard Law School, and all other law schools in the country, to take immediate action to ensure the democratization of legal education and the existence of a diverse faculty, staff, administration, and student body at their respective institutions.