Abstract

Excerpted From: Gabriela Dionisio, Henderson and the Objective Observer Standard: The Future of Race-Conscious Standards Post-Students for Fair Admissions, 48 Seattle University Law Review 255 (2024) (185 Footnotes) (Full Document)

On June 29, 2023, the Supreme Court of the United States decided Students for Fair Admissions v. President & Fellows of Harvard College, which struck down race-conscious admissions policies. The decision erased over forty years of universities' efforts to recruit, select, and advance underrepresented students in higher education. In part, the Court held that race-conscious admissions policies violated the Equal Protection Clause and “subvert[ed] the constitutional guarantee ... by further entrenching racial inequality in education.” Race-conscious admissions policies were created to further diversity and equity initiatives in higher education. But, the Supreme Court found that race-conscious admissions policies fuel inequality. Overall, Students for Fair Admissions severely tightened the legal analysis of race-conscious policies and instead placed unrealistic trust in colorblind strategies.

Within just a year after its ruling, Students for Fair Admissions has already had a sweeping impact, reaching beyond higher education. In the employment sector, Students for Fair Admissions has been used by anti-race-conscious policy advocates as a pivotal argument against employer diversity initiatives. Given the narrow lens of the Equal Protection Clause as interpreted under Students for Fair Admissions, the legality of diversity efforts in recruiting, retention, and mentorship in the legal field has been argued as unconstitutional. Although the Supreme Court did not indicate whether Students for Fair Admissions applies to sectors beyond higher education, law firms, and other employers have already modified their diversity policies and initiatives, erasing race and company diversity considerations. Given those dramatic changes, there is growing fear that Students for Fair Admissions will continue to have a ripple effect on other sectors, including the judiciary. The same legal argument could be used to strike down laws and court rules that consider race as a factor in undoing historically discriminatory practices. The potential for Students for Fair Admission's effects to bleed from the classroom to the courtroom are a dangerous and looming reality.

In contrast, over the past decade, the Washington State Supreme Court has made a series of decisions and court rules to support race-conscious rulings. The court's innovative approach enabled Washington State to consider the influence of racial bias in a trial when reviewing cases on appeal. In 2022, the Washington State Supreme Court issued the pinnacle of its race-conscious decisions in Henderson v. Thompson, holding that a court must grant a new civil trial if an objective observer could view race as a factor in the verdict. Subsequently, Henderson v. Thompson was petitioned for certiorari to the Supreme Court of the United States. In Justice Alito's statement respecting the denial of certiorari, the Justice placed special concern on a potential conflict with Students for Fair Admissions. The Justice noted that Henderson “appear[ed] likely to have the effect of cordoning off otherwise-lawful areas of inquiry and argument solely because of race.” While the Supreme Court did not hear Henderson, its open skepticism left the possibility for similar race-conscious policies to be challenged and overturned.

This Comment will focus on the narrowing constitutionality of race-conscious policies under Students for Fair Admissions. Despite the Supreme Court's stringent interpretation under Students for Fair Admissions, there is still room for race-conscious policies such as Henderson. After the Introduction, discussing the importance of the constitutionality of race-conscious efforts, Part I of this Comment will discuss the history and background of the constitutional debate on race-conscious policies. Part II will elaborate on why Henderson's objective observer standard should remain constitutional, namely because (1) it identifies and remediates a specific instance of discrimination, (2) it is not a race-based classification, and (3) it is the exercise of state sovereignty, which ought to be preserved. Part III will address notable counterarguments to the objective observer standard. Finally, Part IV proposes that racial considerations, namely those made to remediate a specific instance of discrimination, like in Henderson, should be upheld as constitutional under the Equal Protection Clause of the Fourteenth Amendment.

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Although Students for Fair Admissions limits the powers of the Fourteenth Amendment, it is not impossible to make small steps toward justice. Targeted approaches such as the objective observer standard are greatly needed to recognize, address, and solve historic racial inequities. While the degree of specificity for an instance of discrimination to pass the Court's scrutiny is uncertain, the Supreme Court must continue to uphold the values of the Equal Protection Clause. The essence of using specific strategies to combat racism should remain constitutional. The objective observer standard advances the core purpose of the Fourteenth Amendment's Equal Protection Clause: equality in the eyes of the law.

J.D. Candidate, Seattle University School of Law, 2025; B.A., Public Affairs, Seattle University, 2014.