SMU Law Review Forum

Equality, Morality, & Religious Liberty

Mitchell F. Crusto, Loyola University New Orleans School of LawFollow

Abstract

On June 29, 2023, the Supreme Court ruled that the use of a specific race-conscious “tool” in the admission decisions of public and private colleges to achieve diversity is unconstitutional. However, in his nuanced opinion, Chief Justice John Roberts seemed to renew the Court’s commitment to the anti-discrimination vision of the Civil Rights Act of 1964 and its progeny. Furthermore, the Court’s decision provided the possibility of an exception for its stated restriction, that is, for military service academies. Nonetheless, the Court’s ban on a race-conscious tool is expected to have a substantial, negative effect on the application and enrollment of students who are African-Americans, their pathways to graduate and professional schools, and their employment opportunities, resulting in what I coin as a “Black brain drain.” In response to the decision, the U.S. Department of Education has reiterated the pro-diversity vision of the federal laws and has instructed schools on how to minimize the Court’s projected negative impact on the enrollment of racial minorities of color.

This Essay posits that the law should exempt faith-based schools from the Court’s banned approach to affirmative action. This is due to the special missions of these schools, their continuing obligation to anti-discrimination laws, and their unique status in the Court’s constitutional jurisprudence. It utilizes the author’s personal experiences as a Black student who benefited from faith-based education, to call on faith-based schools to actively seek this exemption to fill the pending harm to Black students, their communities, and the Nation.