As the U.S. Supreme Court considers two race-conscious admissions cases involving Harvard University and the University of North Carolina (UNC), the potential impact on Stanford University will depend on how broad or narrow the justices’ decision will be if affirmative action is overturned, said Jenny Martinez, dean of the Law School, in a presentation to the Faculty Senate on Thursday.

Jenny Martinez, dean of Stanford Law School, addresses the Faculty Senate on Thursday during a presentation on affirmative action. (Image credit: Andrew Brodhead)

“There are a lot of complicated issues that universities will have to grapple with, that we will not really know the scope of until the Supreme Court decides,” said Martinez, the Richard E. Lang Professor and Dean at Stanford Law School and senior fellow, by courtesy, at the Freeman Spogli Institute for International Studies.

In his remarks to the senate, President Marc Tessier-Lavigne noted that Stanford joined other organizations this summer in filing an amicus brief supporting Harvard and UNC in these cases.

“At Stanford, we work to administer an admissions process that evaluates each applicant as a whole person,” Tessier-Lavigne said. “It’s a process that honors academic excellence and that seeks to create a class of students that’s diverse in backgrounds, and in experiences, talents, and interests. We firmly believe that diversity in all forms enriches the academic experience of all students, and, consistent with past Supreme Court rulings, that considering race as one factor in a holistic review of each applicant is appropriate to help achieve that.”

Senators also voted on a reform of the autumn calendar to prevent the 2023-24 academic year from starting on Yom Kippur and to create a process to avoid future conflicts.

Additionally, Provost Persis Drell told senators that a search committee has been created to find the next director of the SLAC National Accelerator Laboratory, following the announcement that Chi-Chang Kao will step down to return to research.

The committee, assembled according to Stanford’s agreement with the Department of Energy, will be chaired by Vice Provost and Dean of Research Kathryn “Kam” Moler. The committee also includes Professors William Chueh, Jennifer Cochran, Kelly Gaffney, and Philip Schuster; Saurabh Anand, senior university counsel; Russell Furr, associate vice provost for environmental health and safety; Farnaz Khadem, vice president for university communications; and Michael Witherell, director of the Lawrence Berkeley National Laboratory.

“We are all grateful for the work that has been done at SLAC under Chi-Chang’s leadership,” Drell said.

On a different topic, Drell also discussed her experience co-teaching in the COLLEGE program this past quarter with Caroline Winterer, the William Robertson Coe Professor in History and American Studies in the School of Humanities and Sciences, professor of history, and, by courtesy, of classics and of education.

“Working with someone in a different field in this kind of a course has been wonderful. I have learned so much. The students are fabulous,” she said in encouraging others to consider teaching in the program. “I normally teach physics, so teaching texts has really been a new frontier, but it really has been a wonderful experience.”

Legal nuances on the horizon

A group called Students for Fair Admissions (SFFA) first brought a suit against Harvard in November 2014 claiming the school’s use of race as a factor in its holistic admissions process violates civil rights laws. Earlier this year, the Supreme Court agreed to hear the case alongside a second lawsuit filed by SFFA against UNC.

In her presentation, Martinez reviewed the cases’ legal framework for arguments, which includes the 14th Amendment; Title VI of the Civil Rights Act of 1964, which prohibits recipients of federal financial assistance from taking action motivated by race, color, or national origin; the Regents of the University of California v. Bakke case of 1978; and others.

It appears that three Supreme Court justices support affirmative action, three likely oppose it, and three remain unclear on their stance. However, the latter three’s questions in oral argument, to most observers, seem to indicate that they’re likely to rule against Harvard and UNC, Martinez said.

Highly selective universities such as Stanford and MIT, consistent with prior Supreme Court precedent, can consider race as one of many factors when reviewing applicants in their admissions processes. Affirmative action programs and policies based on race must pass the constitutional “strict scrutiny” test, which stipulates that a law or policy is necessary to achieve a compelling interest or purpose, and that it is also narrowly tailored and uses the least restrictive means to achieve that purpose, Martinez said.

While discussing what the banning of affirmative action could mean for Stanford, Martinez noted that diversity has fallen dramatically across campuses in the University of California (UC) system, which has been prohibited by state law from considering race in admissions since 1996.

Martinez said the UC system has implemented race-neutral measures to increase diversity throughout its system, but according to its brief filed with the Supreme Court, it hasn’t yet achieved adequate diversity to fully realize the educational benefits of diversity, particularly at its most selective campuses like UC Berkeley. Similarly, despite extraordinary efforts, the University of Michigan’s race-neutral recruiting and admissions initiatives have failed to yield racial diversity, according to the university’s brief.

The latest that the Supreme Court will make a decision is June, and many unknowns remain for what the decision will mean for Stanford, Martinez said. It may mean a broad colorblind interpretation of the Constitution. It’s also unclear when the decision would take effect, though likely it would be immediate, she said.

There’s “a lot of legal nuances that universities will have to grapple with in terms of the legal landscape, in terms of discrimination,” Martinez said.

Furthermore, because Title VI applies to any program or activity carried out by universities, Martinez said, race-conscious fellowships and other programs or activities carried out by universities could be affected.

Several senators asked Martinez how the banning of affirmative action might impact other spheres of university life that benefit from diversity, such as research.

“You could still seek to increase diversity, but you could not take account of race in that process, so you would not be allowed to consider the race of anyone in the program as part of the diversity that you were trying to increase, if the court were to rule that you can’t consider race,” Martinez replied. “That would mean race-conscious efforts to promote diversity are unlawful across our educational program.”

Ken Schultz, professor of political science and chair of the Faculty Senate, asked how race-neutral mechanisms for admission are evaluated and what the benchmark is for achieving the level of desired diversity.

The Supreme Court definitely hasn’t liked arguments that are quantitative with a numerical target, Martinez said, and justices have previously endorsed a critical mass argument, which stipulates that universities need a critical mass of students from underrepresented minority groups to achieve the benefits of diversity.

“You’re looking for that critical mass so that students don’t feel isolated, that they’re not stereotyped … so that there isn’t that sense of tokenism in representation,” Martinez said.

Deborah Hensler, the Judge John W. Ford Professor in Dispute Resolution at Stanford Law School, asked whether there may be a period of litigation if the Supreme Court were to make a broad decision in overturning affirmative action.

“Lawyers love to sue people. … There are a lot of interested parties [that] … may want to challenge things,” Martinez said. “And given the uncertainty, I would expect there would be a fair amount of litigation trying to sort out the contours of whatever rule was announced.”

Larry Diamond, the Mosbacher Senior Fellow in Global Democracy at the Freeman Spogli Institute for International Studies, senior fellow at the Hoover Institution, and professor, by courtesy, of political science and sociology, said “it’s a stain on our nation’s character” that “we’ve made so little progress in getting to the point which we’d all like to get to, where [affirmative action] didn’t need to be relied on.”

He added that universities will be facing a “stark reality” next June, which will require a “very creative and energetic societal response.”

Academic calendar

The 2022-23 academic year began on Rosh Hashana, and it’s not an isolated incident, said the Rev. Dr. Tiffany Steinwert, dean for religious and spiritual life, during a presentation on the academic calendar. Between 2022 and 2030, there are five years when the start of the academic year conflicts with religious observances: 2022, 2023, 2025, 2026, and 2029. The university has not yet set its academic calendar for 2031 through 2040.

“This causes considerable difficulty,” Steinwert said. “Many of you know from your students, from your own experience, that having a conflict the first very day of autumn instruction, the outset of the academic calendar, is quite difficult.”

Course enrollment is sometimes determined by first day attendance, and students’ ability to review the course objectives and requirements also often occur on the first day, she explained. Moreover, it’s harder to make prior arrangements for religious observance at the start of autumn quarter, especially for newly matriculating students, she said.

There’s no universal solution for avoiding such conflicts, Steinwert said, as each year must be adjusted to account for the particularities of the year. Adjusting the set calendar is a complicated process and best done with a strategic committee of faculty and staff in collaboration with the Registrar.

Following a motion read by Jeremy Bulow, chair of the Committee on Graduate Studies (C-GS), senators unanimously voted to approve legislation designating the first day of autumn quarter for Academic Year 2023-24 as Tuesday, Sept. 26, 2023, and for the C-GS and the Committee on Undergraduate Standards and Policy (C-USP) to form a joint subcommittee to work with the Registrar on resolving future conflicts. Bulow is the Richard A. Stepp Professor in the Graduate School of Business, a senior fellow at the Stanford Institute for Economic Policy Research, and professor, by courtesy, of economics.

The joint subcommittee will bring a proposal to the Faculty Senate by the end of the 2022-23 academic year. Bulow later clarified that multiple options will be brought back to the Faculty Senate, in addition to a recommendation of the committee’s first choice.

William Chueh is associate professor of materials science and engineering and of energy science and engineering, and senior fellow at the Precourt Institute for Energy; Jennifer Cochran is the Shriram Chair of the Department of Bioengineering, and professor of bioengineering and, by courtesy, of chemical engineering; Kelly Gaffney is associate professor and department chair of photon science, and professor, by courtesy, of chemistry, and deputy associate laboratory director, energy sciences directorate, and chemical sciences division director; Kathryn Moler is the Marvin Chodorow Professor in the School of Humanities and Sciences, and professor of applied physics, of physics, and of energy science and engineering; and Philip Schuster is professor of particle physics and astrophysics and chair of the particle physics and astrophysics department at SLAC.