An "Exceedingly Persuasive Justification": Affirmative Action as Protected by the Free Exercise Clause

Abstract

In 2023, the Supreme Court’s Students for Fair Admissions, Inc. v. Harvard (SFFA) decision effectively outlawed the use of race-based affirmative action programs in higher education, holding that such programs violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Title VI of the Civil Rights Act of 1964. Meanwhile, the current Supreme Court has been unprecedently friendly to claimants seeking Free Exercise Clause protection from government restraints on religious exercise. The intersection between these two areas of law has implications for a category of schools not explicitly considered in the SFFA decision—private, religious schools that use race in furtherance of their religious missions. This Comment raises and analyzes issues that a religious school seeking to consider race as a factor in its holistic admissions process may encounter. Specifically, this Comment addresses the viability of a religious school’s potential claims under the Free Exercise Clause and the Religious Freedom Restoration Act (RFRA). While acknowledging that many questions remain unanswered in this area of constitutional law, this Comment argues that religious schools seeking to use race in admissions as part of their sincerely held religious missions should have their distinct interests certainly considered and perhaps protected by Congress. Just as Congress has provided statutory exemptions to religious schools under Title XI to neutralize conflicts between government action and religious exercise, Congress could provide a narrow, statutory exemption to Title VI for religious schools that seek to use race in furtherance of their religious missions. Such action would be consistent with the fundamental value of First Amendment religious liberty in the United States.