Do Catholic Universities Have a Constitutional Right to Employ Affirmative Action Practices?

Affirmative action is an aspect of the college admissions process that has been long criticized. Affirmative action was first introduced on a legislative scale in an executive order from President John F. Kennedy in 1961. The order decreed that in a professional environment, a contractor “will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.” Within the context of college admissions, affirmative action is intended to alleviate some of the obstacles and discrimination faced by racial minorities, as it allows colleges and universities to consider the race of their applicants.

There have been many Supreme Court cases regarding affirmative action, and the practice is often the source of much political discontent. The Supreme Court is scheduled to hear two cases regarding affirmative action this year, and these decisions have the potential to end the practice altogether. In response to these cases being put in front of the Supreme Court, Georgetown University, a Jesuit institution, filed an amicus brief, along with 56 other Catholic Universities alleging that because of their status as religious institutions and the necessity of diversity to their religious mission, their right to consider race in the application process is protected under the free exercise clause of the first amendment.

The brief discusses the admissions process as it stands at many of these universities, defining it as a holistic approach that does take race into account with the purpose of maintaining a diverse student body as to further their goals rooted in Catholicism. The brief argues that because of their status as Catholic institutions, the included universities have a unique perspective on the affirmative action issue. The brief begins with a discussion of Catholic teachings, arguing that they “emphasize the dignity of each individual and the importance of service to the underrepresented.” Because of this pillar of Catholic education, diversity within Catholic institutions is vital to furthering their ultimate pedagogical goal. The brief outlines four reasons for the importance of diversity within Catholic higher education: First, the dynamic environment that comes along with diversity furthers Catholic values such as rigorous thinking and empathy. Second, a diverse environment leads to personal growth, which goes towards the Catholic pedagogical goal of tolerance. Third, social justice is a pinnacle of Catholicism, and thus it is the responsibility of Catholic universities to provide opportunities to underrepresented groups. And finally, it is a mission of Catholic education to create thoughtful, creative, and diverse leaders, which will only result from a diverse educational environment.

After outlining the argument for why diversity is so important for Catholic higher education, the brief argues that because of this, the right of Catholic universities to use affirmative action processes to ensure a diverse class of students is protected under the free-exercise clause of the first amendment. The brief cites multiple free exercise cases tied to education, including Wisconsin v. Yoder, a Supreme Court case in which under the free exercise clause, Amish families were granted the right to withhold their children from school because they believed a traditional education went directly against Amish teachings. The brief argues that all of these cases emphasize the importance of people being able to exercise their religion freely, and goes on to make the argument that the issue of allowing Catholic universities to continue their affirmative action practices is no different, Because diversity is so closely tied to the universities’ religious mission, not allowing them to continue to attempt to create as diverse a class as possible inhibits their free exercise.

While I can agree with the authors of this brief that a diverse educational environment is important, I do not believe that the end of affirmative action practices would inhibit the free-exercise of Catholic universities. All of the Catholic principles discussed in the brief could easily be secular principles, and the brief does not make a strong argument as to why, exactly, they are tied to Catholicism. Additionally, there are other efforts that can be made for Catholic universities to secure a diverse class of students without affirmative action, such as increasing outreach and making students of color feel safe on campus so that other students of color are more compelled to apply in the future. Because of the other alternatives that can be taken, the end of affirmative action would not inhibit Georgetown or the other 56 universities’ free exercise of religion–while affirmative action being abolished might make it more difficult for colleges to increase their diversity, it would force them to consider other ways to foster a diverse and inclusive campus environment.