Hierarchy Maintenance Through Constitutional Law: How SFFA Retrenches Unequal Access to Higher Education and Why HBCUs are Essential for Change

Introduction

In its 1954 Brown v. Board of Education^[1] decision, the U.S. Supreme Court held that separate educational facilities for Black children were inherently unequal, which effectively ended de jure segregation in this country.^[2] Significantly, the Court had been signaling this change for more than a decade, rejecting the separate but equal doctrine, codified by Plessy v. Ferguson,^[3] in several higher education decisions.^[4] For more than a decade after these seminal decisions, however, resistance to integration persisted.^[5] And only after the Supreme Court intervened in several subsequent desegregation cases did it seem that the White majority ideology of separate but equal had shifted.^[6]

The fight for equality in education, however, continues. Despite gargantuan effort, segregation remains a threat for many of our secondary schools, and unequal access to higher education is a constant because our country has failed to successfully grapple with the issue of race and equal access to educational opportunities. Whether through racial segregation or unequal access, a dual and unequal system of education persists in America.^[7] The continued low enrollment of Black and other minoritized students at predominantly White institutions (“PWIs”)^[8] and disparate funding of historically Black colleges and universities (“HBCUs”)^[9] and their law schools are illustrative of this phenomenon in higher education. While Black students make up approximately 13% of all postsecondary enrollment in the U.S. and 53% attend PWIs, they are still underrepresented on predominantly White campuses when compared to White students.^[10] Moreover, according to a 2023 analysis by the Departments of Education and Agriculture, “historically Black land-grant institutions received about $12.6 billion less in state funding than other land-grant institutions between 1987 and 2020.”^[11]

In 1974, Justice Thurgood Marshall aptly noted, unless we “learn together, there is little hope that our people will ever learn to live together.”^[12] In July 2023, when the Supreme Court handed down its decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (“SFFA”),^[13] it not only struck down the use of race-based admission, i.e., affirmative action in higher education,^[14] it virtually ensured that it would be more difficult to do both of these things—learn together and learn how to live together.

After years of touting the idea that diversity was a compelling interest,^[15] the Court signaled a willingness to follow the shift in American society. At the very least, the Court signaled a willingness to maintain the hierarchy of the White majority. In its decision, split along conservative and liberal lines and authored by Chief Justice John Roberts, the Court effectively sounded the death knell to many of the admissions policies, diversity programs, and scholarships that countless college admissions personnel had relied on to diversify their populations.^[16] Following closely on its heels, in 2024, the country re-elected Donald Trump, and the march to resegregation (or whatever the will of the White majority is) seems all but certain.^[17]

Affirmative action and HBCUs have long been the two most widely utilized tools in achieving diversity in the disproportionately White higher education landscape. Though affirmative action admissions practices were admittedly far from perfect,^[18] they certainly provided a workable framework to assist in diversifying and providing equal access to higher education. Moreover, despite chronic and systemic underfunding, HBCUs have educated a large majority of Black and other underrepresented populations in the United States, thereby assisting in diversifying higher education.^[19] This has been particularly true of HBCU law schools and the legal profession.^[20]

In the absence of affirmative action as an admission tool and considering the historic underfunding of HBCUs, undoubtedly the landscape of higher education and the legal profession will begin to look significantly different, closer to the White monolith of old. Alarming for higher education, generally, this change is untenable for the legal academy, which is the gateway to the justice system. Without a diverse legal profession, this nation is left to repeat its history—a dual and disparate higher education system to a retrenchment of outright racism in its systems produced by its White majority.

At a time when diversity in higher education is resting primarily on the shoulders of HBCUs, strengthening and fully funding these institutions is critical.^[21] This Article makes this case. To aid in this endeavor, this Article utilizes the lens of Social Dominance Theory (“SDT”), a synthesized combination of several psychological theories that explains the interrelationship between individuals and the groups they form, particularly around race and gender, in maintaining societal hierarchies.^[22] By means of SDT, the Article takes a didactic look at the history of segregation—including the separate but equal doctrine of Plessy to the seminal Brown decision and its higher education forerunners that were supposed to bring us together—to better understand the current place in which we find ourselves in higher education, particularly the legal academy, and the urgency with which we must move to strengthen HBCUs and their law schools.

The Article begins in Section I with an introduction to SDT, which will be used as a tool to explain the perniciousness of segregation in American education, especially higher education (for purposes of this Article). In Section II, the Article gives an overview of segregation in education, particularly higher education, before discussing the creation, evolution, and importance of HBCUs, particularly HBCU law schools, in Section III. In Section IV, the Article briefly discusses the SFFA decision and how it reflects the White majority’s subjugation of Black (and other minoritized) populations,^[23] before discussing those impacts on HBCUs and their law schools in Section V. Also, in Section V, the Article ponders the need to strengthen HBCUs and their law schools and examines some mechanisms to do so.

I. The Social Dominance Theory View

SDT is utilized in this Article to assist the discourse about past (and more recent) racial tensions in this country, and to make plain why these tensions will likely persist in the absence of meaningful change in how race is viewed and discussed. Through the lens of SDT, it becomes much clearer how the separate but unequal construct in higher education threatens to reemerge after SFFA.

To begin, race relations in this country have a storied history. Despite its reputation of being a “melting pot,”^[24] there has long been racial tension between the majority and minority populations, especially with people of African descent^[25] in the United States.^[26] A byproduct of this tension has been segregation, which is a tool long used to control the spaces that Black people are allowed to occupy.^[27] While overt racism is no longer as prevalent as it once was and de jure segregation in education was struck down in Brown more than seventy years ago, America has been an expert at covertly continuing its separatist (and unequal) ways.

Social scientists have been instrumental in ferreting out some of the mechanisms used by White people to control access to spaces of power and learning.^[28] For example, sociologist and author Katherine Beckett “exposed how political and media elites socially constructed the war on crime and the war on drugs in the latter 20th century to stoke racial anxieties and advance a conservative agenda.”^[29] Additionally, authors Tali Mendelberg (a psychologist and political scientist), Ian Haney López (a constitutional law professor), and Dylan Bennett and Hannah Walker (political scientists) all showed in their respective writings “how strategic actors imbue race-neutral words like fundamental rights, gun ownership, welfare, crime and criminal justice, and states’ rights with racial meaning to seek political, economic, and ideological gains.”^[30] Also, Jessica López-Espino (a legal and linguistic anthropologist) has “expose[d] how legal professionals create covert discourses to racialize and coerce obedience from parents in child welfare cases through techniques of silencing, voicing figures of disbelief and labeling their speech as lies and excuses.”^[31] In the time-honored tradition of utilizing social science theory to engage in discourse about a legal issue,^[32] this Article utilizes SDT to probe the persistent nature of unequal access to education in America.

Initially espoused in 1999 by social scientists Jim Sidanius and Felicia Pratto,^[33] SDT is an integration of a number of social science theories used to explain “intergroup conflict, stereotyping, and group oppression.”^[34] SDT was heavily influenced by personality psychology, social psychology, and political sociology, and therefore, defies description as “strictly a psychological or a sociological theory.”^[35] Rather, SDT is described by its creators as “an attempt to connect the worlds of individual personality and attitudes with the domains of institutional behavior and social structure.”^[36]

Accordingly, SDT views all of the familiar forms of “group-based oppression, e.g., group-based discrimination, racism, ethnocentrism, classism, sexism, as special cases of a more general tendency for humans to form and maintain group-based hierarchy.”^[37] In particular, SDT focuses on deepening the “understanding of the recurrent realities of actual human existence, including the universal realities of patriarchy, ethnocentrism, and dominance/submission.”^[38] To that end, SDT asks the salient question, focusing on social groups instead of individual behaviors: why do human societies tend to organize as group-based hierarchies?^[39] SDT begins with the basic premise that “all human societies tend to be structured as systems of group-based social hierarchies” with at least one “dominant” and “hegemonic” group at the top and at least one “subordinate” group at the bottom.^[40] Relatedly, SDT distinguishes between two types of forces that shape group-based social hierarchies.^[41] Hierarchy-enhancing forces tend to reinforce and strengthen existing inequalities, while hierarchy-attenuating forces work to undermine them.^[42] Sidanius and Pratto explain, “Among other things, the dominant group is characterized by its possession of a disproportionately large share of positive social value, or all those material and symbolic things for which people strive.”^[43] The dominant group is more likely than not to use their disproportionate share of positive social value to reinforce and strengthen society’s existing hierarchy, while the subordinate group works tirelessly to weaken and undermine it.^[44]

SDT provides an important theoretical context to the continued unequal access to higher education that presents in America. First, SDT recognizes the strong relationship between “chronic group-based oppression” and systemic, institutional, and individual discrimination.^[45] Sidanius and Pratto explain:

[M]any social institutions (e.g., schools, organized religions, marriage practices, financial houses) and many powerful individuals disproportionately allocate desired goods—such as prestige, wealth, power, food, and health care—to members of dominant and privileged groups, while directing undesirable things—such as dangerous work, disdain, imprisonment, and premature death—toward members of less powerful groups.^[46]

Thus, under SDT, institutional discrimination (like segregation or unequal access to education in this case) is considered one of the major forces that create, perpetuate, and recreate “systems of group-based hierarchy.”^[47]

Furthermore, SDT recognizes that discrimination amongst groups is premised on individual social ideologies, which then inform both individual and institutional actions.^[48] Sidanius and Pratto point out that this coordination occurs because people, as social creatures, share knowledge and beliefs to legitimize discrimination, most often behaving in ways that endorse those discriminatory ideologies, which results in “people support[ing] institutions that allocate resources in accordance with those ideologies.”^[49] Moreover, as individuals, they distribute resources consistent with those ideologies, especially in terms of social contexts that prompt these ideologies.^[50] Significantly and perhaps predictably, to ensure their survival and hierarchal status, members of the more dominant group generally act in their own best interests more than those of the subordinate group.^[51]

Finally, SDT recognizes the part that the desire for group-based dominance plays in individuals accepting “ideologies that legitimize inequality and behaviors that produce inequality[.]”^[52] Using this construct, called Social Dominance Orientation (“SDO”), SDT parses some of the factors involved in group-based hierarchy at various levels of analysis, “including psychological orientations, the discriminatory behaviors of individuals, the legitimizing ideologies that permeate entire social systems, and the social allocations of groups and social institutions.”^[53] SDO levels are scaled from high to low, with dominant (or majority) population members having higher SDO than those of subordinate (or minority) populations.^[54] Interestingly, social dominance theorists find that SDO levels are sensitive to both “transitory and chronic differences in perceived social power” between subordinate and dominant social groups.^[55] Numerous experiments have illustrated this sensitivity: (1) in one experiment, scientists found that people higher in SDO tended to be most discriminatory against the out-group, especially when the in-group was “one with which they could highly identify”; (2) in another experiment, results showed that people, regardless of their position on the SDO scale, seemed equally discriminatory until they were put under group threat; but once under threat, “high-SDO people became highly discriminatory and low-SDO people failed to discriminate”; and (3) in a third type of experiment, researchers found that once negative perceptions of immigrants were reduced, prejudice against them was reduced by those low in SDO, but no reduction occurred after such an intervention for those high in SDO.^[56]

In sum, SDT explains in and out-group dynamics and how they affect institutions in America, particularly why the U.S. Supreme Court—as one of the institutions built by and upon White majority ideology—acted to preserve White homogeneity and the existing hierarchy in America in SFFA. SDT’s synthesized theoretical framework provides startling insight into segregation of old and continued unequal access to higher education—“[f]rom the creation of anti-literacy laws, HBCUs in the North founded by White missionaries to spread the Gospel, Southern states refusing to integrate, to federal and state governments continuing to control the funding of many HBCUs”^[57]—and why White control over Black literacy and education still persists today. Finally, SDT provides insight into higher education’s critical role in changing the narrative that surrounds race in America, and its importance in challenging existing hierarchies in this country and creating a diverse and inclusive society.

II. Overview of Segregation in American Education

Having introduced SDT and the role it plays in understanding the racial dynamics of segregation, this section discusses the history of segregation in American education, from the “separate but [un]equal” of Plessy v. Ferguson,^[58] to its demise in Brown and its higher education forerunners. Additionally, this section also discusses the creation and evolution of HBCUs, which were created as an instrument of segregation but have become a powerful tool in diversifying higher education and professional occupations, most particularly, the legal profession.

A. Education in America Before Brown

Viewing the history of education through the SDT lens, it is not surprising that education, as with other inalienable rights guaranteed by the U.S. Constitution, was once a privilege enjoyed by only free White men, who have long been the majority population in America that subjugated all others, including White women and Black people.^[59] Because education has long been viewed as the pathway to success,^[60] access has been closely guarded by the White male majority,^[61] who controlled its distribution to other subordinate groups.^[62] Access to higher education was even more closely guarded.^[63]

SDT demonstrates how dominant groups actively shape and impose their ideological beliefs about minority groups, systematically embedding these beliefs into society’s foundational institutions and power structures.^[64] American history starkly demonstrates this dynamic: the White majority systematically embedded their racist ideologies into the very foundations of the institutions they created. For example, the White majority codified into law and policy the fabricated notion that Black people possessed inferior intellectual capabilities and work ethic compared to White people.^[65] Sadly, if you speak with some White people today, they still hold these views.

Further, in light of the relationship between individual and group ideology and society’s systems and institutions, it is not surprising that, even before Plessy, U.S. courts, as hierarchical-maintaining institutions built by White majority ideology, upheld institutional segregation as non-violative of the Fourteenth Amendment’s Equal Protection Clause.^[66] SDT also explains the ebb and flow of seeming progress amongst subjugated groups: although there were times in history when the subjugated group seemed to be making progress, the majority group acted to reinforce and maintain the existing hierarchy.^[67] As seen in American history, during Reconstruction (1865-1877), freed slaves made some progress—participating in politics and even attending integrated schools.^[68] However, southern legislators (the White majority) began adopting laws that limited Black opportunity, including access to education.^[69] State constitutional changes and other Jim Crow laws or Black Codes decimated Black people’s participation in politics and banned their participation in public education.^[70]

These racist ideologies birthed and justified a dual education system that perpetuated inequality throughout the U.S.^[71] As James D. Anderson explained, this system created parallel tracks: one for “democratic citizenship” and another for “second-class citizenship.”^[72] The “normal schools” established in the South to train Black teachers—themselves limited to basic education—became the foundation for the separate and unequal system of higher education that would persist in the United States.^[73]

America’s dual education system persisted and was “codified” by the hierarchy-maintaining U.S. Supreme Court in Plessy. In Plessy, the Court reaffirmed the color line that had become firmly entrenched by the White majority in American society—a line drawn because of fear and misunderstanding of Black Americans—and an ideology that promoted White superiority and Black inferiority.^[74] As Rebeka Maples notes in her book, The Legacy of Desegregation: The Struggle for Equality in Higher Education, “[t]he Plessy . . . decision virtually helped to create a ‘racial caste’ system for separate-and-unequal development on all levels of participation” in American society.^[75] Though the decision legalized the separation of people by race or color in the context of public transportation, Plessy’s mandate extended to other contexts, with an “overriding” intention to limit Black people’s participation in public education.^[76]

In sum, the systemic entrenchment of segregation in public education served as a cornerstone of Jim Crow, devastating the lives of over ten million Black Americans through ruthless social, economic, and political oppression that permeated every aspect of life across the South and border states.^[77] Significantly, many had hoped that dismantling de jure segregation in education would be the beginning of freeing both Black and White people from racist oppression.^[78]

B. Brown v. Board of Education and Higher Education Forerunners: The End of Legal Segregation

Despite signs that many White people in the North and other areas of the country (except the South) were cooling to the segregationist ideologies of the past, Plessy continued to be the law of the land until the U.S. Supreme Court overruled it in Brown v. Board of Education on May 17, 1954.^[79] However, change was inevitable as industrialization replaced an agricultural economy and World War II soldiers, who had fought together irrespective of race, returned from war.^[80] Even more saliently, White majority ideologies were shifting as more of the White underclass gained access to higher education.^[81] As individual ideologies shifted, explicably, group and institutional ideologies began to shift as well.^[82]

Between 1938 and 1950, the Supreme Court issued a series of landmark decisions that systematically dismantled segregation in higher education. In Missouri ex rel. Gaines v. Canada (1938),^[83] the Court rejected Missouri’s practice of sending Black students to out-of-state schools rather than admitting them to White institutions, holding that states must provide substantially equal educational opportunities within their borders.^[84] A decade later in Sipuel v. Oklahoma State Regents (1948),^[85] the Court reinforced this principle, ruling that Oklahoma’s hastily created separate law school for Black students—merely classrooms in the State Capitol—failed to provide equal educational opportunity.^[86]

The Court delivered the final blows to “separate but equal” in higher education with Sweatt v. Painter^[87] and McLaurin v. Oklahoma State Regents (1950).^[88] Sweatt required Texas to admit Black students to its all-White law school rather than maintain a separate facility,^[89] while McLaurin went further, holding that even when admitted, Black students could not be segregated from their White classmates as such separation inherently impaired learning and violated the Equal Protection Clause.^[90]

Finally, in 1954, the Supreme Court unanimously held in Brown that “separate is inherently unequal” in the context of secondary education.^[91] At the time of the Court’s decision, the shift in attitude and ideology about race relations in America, much like more recent times (but in opposite ways), had resulted in a reconstitution of the Supreme Court.^[92] Contrary to its composition during Plessy, the Court was composed of political liberals or moderates who had been appointed by Presidents Roosevelt or Truman.^[93] In addition, much like some of the criticisms of the Court presently, during that time, there was criticism that the Brown Court no longer respected the rule of law, and the justices were being guided by personal agendas.^[94] Though it seemed unlikely at the time,^[95] the justices agreed on a compromise in Brown and delivered a unanimous decision.^[96]

Brown was a consolidated action of five lawsuits.^[97] The plaintiffs in Brown were all Black people seeking relief from racial segregation that was characterized by a disproportionate lack of resources, resulting in low teacher pay, sub-standard facilities, and overcrowding, among other things.^[98] Accordingly, they argued that separate educational facilities were inherently unequal. ^[99] Notably, the Topeka, Kansas lawsuit, Brown, which became the first listed case in the consolidated action, was the only case that rested on the psychological effect that segregation had on Black children.^[100] To no surprise, the plaintiffs in all of the cases lost at trial level, and they were appealed to the Supreme Court.^[101] The Court was reportedly “[n]ervous about ruling on such an inflammatory issue,” so the appeal was heard twice: first, in December 1952 and again in December 1953 on an ex mero motu order for rehearing.^[102]

The plaintiffs and counsel were hopeful but anxious. The unequal distribution of resources in these cases and the plaintiffs’ losses at the trial level are easily explained by the White majority’s dominance of resources and American courts being used as a tool to maintain the existing hierarchy, respectively.^[103] However, as SDT suggests, change is made possible when ideologies shift in the majority group, and this change is reflected in its institutions^[104]—in this case, the White House and the U.S. Supreme Court. At that time in history, there was also hope that the shift in ideologies of the White majority in the North would cancel out the long-held racist ideology of the White majority in the South in order to afford the subjugated Black population equal education rights.^[105]

Chief Justice Warren drafted the Court’s opinion. Though it has been described as “short and unemotional,”^[106] it did something that no other political institution seemed willing to or capable of doing at that time in history: change the White dominance long-held in the South over Black people.^[107] Slightly more than one year later, on May 31, 1955, the Supreme Court announced its implementation guidelines in what became known as Brown II.^[108] In Brown II, Chief Justice Warren was again brief in announcing the Court’s decision. The decision provided that desegregation cases would be remanded to federal district and appellate courts in the South and border states, with directions that they implement desegregation “with all deliberate speed” through appropriate orders ensuring racially nondiscriminatory school admissions.^[109] However, this intentionally flexible language, which was again designed to allow gradual shifts in “deeply established racial patterns in the South” and lead to eventual compliance with the new law of the land,^[110] resulted in resistance and ad hominem interpretations of just what the Court meant by “all deliberate speed.”^[111]

Indeed, Brown and its higher education forerunners signaled change in America: the grip of legal segregation (also known as racism) in the South was loosened and the rigid interpretation of the Constitution would be modified to embrace the changing times.^[112] However, these cases could not erase the harm that the dual education system had perpetrated upon Black people and arguably society writ large. To no surprise, while Brown ended legal segregation, ardent segregationists, holding firmly to their racist ideology, worked tirelessly to impede desegregation.^[113] In the South, while Black children and their parents remained hopeful that segregation would end, they found out quickly that only legal segregation had ended.^[114] Many critics of the Court’s decision in Brown describe it as “legally weak and lack[ing] enforceability.”^[115] For its proponents, the decision was an important step in the right direction, despite taking years of litigation, surviving the Civil Rights Movement, and seeing the passage of the Civil Rights Act of 1964 to bring about the reforms that the Court envisioned in 1954.^[116]

As time would tell, the vestiges of the de jure segregation in education would become hard to erase. Though some ideologies of the White majority seemed to be shifting, the institutions that had been borne of those old, racist ideologies were very much still operating to maintain the hierarchies of the past. Particularly, as it pertained to higher education, despite Brown, the cases decided before it, and the passage of the Civil Rights Act of 1964, there was little change in the firmly entrenched dual education system that was fostered by the creation of separate institutions, once called “normal schools” (which evolved into HBCUs) for Black students.^[117]

III. Segregation in Higher Education and the Evolution of HBCUs

A dual education system did not just exist in secondary education. It also existed and, to this very day, persists in higher education.^[118] Nowhere is it more apparent than in the creation and evolution of HBCUs. HBCUs, which were originally founded in the South as “normal schools” to provide a limited education for Black students,^[119] are illustrative of the actualization of the majority population’s control and disparate distribution of resources to a subordinate group. Nonetheless, HBCUs have evolved and play an important role in diminishing the hierarchy of the White majority. This role as a hierarchy-attenuating institution in America is perhaps the reason for continued public and private disparate funding, which threatens HBCUs’ accreditation and, consequently, their very existence.

A. Creation of HBCUs

As mentioned in Section II.A, for some time in our country’s history, education (including higher education) was for the elite.^[120] As access to education was controlled by the White male majority, “[w]omen, Jewish people, Irish Americans, Black and Brown people were intentionally barred from entering these spaces of higher education.”^[121] Initially, private schools such as Oberlin College, which offered admission to women and Black people as early as 1837 and 1835, respectively, opened up opportunities for higher education to the lower echelon of society.^[122] Additionally, there were five private HBCUs established prior to the Civil War.^[123] The remaining HBCUs (private and public) were established after the Civil War and the Emancipation Proclamation formally ended slavery.^[124]

In 1862, during a period of significant shift in political and economic ideologies, Congress passed the Morrill Act, which President Abraham Lincoln signed into law to democratize higher education by extending access beyond the wealthy elite.^[125] These schools would be known as “land-grant” institutions because they were established by monies raised from the sale of federally gifted land.^[126] However, the ideologies about Black people did not shift to the point that the federal government was willing to extend equality to their education.^[127] Accordingly, the Act did not make provision for the education of Black people.^[128] Instead, these first land-grant institutions were meant to educate “poor White workers to become a new middle class of managers”^[129] and, thus, support the White majority. It was not until Congress passed the Second Morrill Act of 1890, which required states that funded or established all-White land-grant institutions through the first Morrill Act to either admit Black students or to use the new funding to create equitable higher-education institutions for Black students.^[130] Notably, only six states actually created new institutions for their Black students, while “others either fund[ed] already established private Black colleges or designat[ed] existing normal schools as their second Morrill Act land-grant institution.”^[131]

While the intent of the Second Morrill Act may have been to create “just and equitable funding”^[132] for Black student education, as with most matters concerning Black people and the creation of race equity in America, the Second Act failed miserably, at least in part, due to the long-held racist ideologies of the White majority.^[133] As a result, the dual education system continued with underfunded and inequitable Black institutions, which became known as HBCUs.^[134] As with many race-related social constructs in America, instead of minimizing or addressing segregation, the Second Morrill Act had “‘the paradoxical consequence of contributing to the segregation of educational institutions’ in America.”^[135] Student-author Jasmine Cooper astutely points out in her note, Battle of the Lands: The Creation of Land Grant Institutions and HBCUs—Fostering a Still Separate and Still Unequal Higher Education System:

Because of the Morrill Act, the child of the poor White overseer gets to attend the University of Maryland and the former slave child attends Baltimore Normal School. The poor White child is being educated at a school intended to train him to become a member of a newfound middle class[,] while the former slave child only has remedial classes available to him at a school with a completely different purpose.^[136]

Additionally, Congress’s traditional funding structure, rooted in White majority dominance and used to maintain it and which provided that funds be sent to the states for disbursement to the individual institutions, perpetuated disproportionate funding to Black institutions.^[137] As observed by Cooper in her note, “[b]y giving states the opportunity to either create Black colleges or underfund them, the federal government in essence created the doctrine of separate but equal six years before it was firmly established in Plessy v. Ferguson.”^[138]

This funding structure remains in place to this very day. And while HBCUs long ago moved away from their limited curricula as “normal schools,” it is no surprise that this historical inequity has made it virtually impossible for HBCUs to close this funding gap.^[139] This funding gap is but one example of the systemic resource deprivation visited upon the subjugated Black population by the White majority. Further, this gap is analogous to, and because of, the ideological gap between the White majority population and the Black minority population and its allies.^[140] Fortunately, while a hindrance, this systemic deprivation of equitable funding has not, however, prevented HBCUs from positively impacting the Black community^[141] (and arguably the larger community as well).

B. The Evolution, Significance, and Struggles of HBCUs, Especially HBCU Law Schools

As American higher education has evolved, so too have HBCUs (to a certain extent). Like many of the rights extended and institutions shaped by the White majority, HBCUs have enjoyed success strategically limited by dominant group control. While HBCUs began as Southern “normal schools” created to prepare freed slaves for work outside the plantation, they have long since expanded their mission and curricula.^[142] America’s perception of them as less prestigious than PWIs, however, has persisted, affecting how they are funded and ultimately accredited.

1. HBCUs’ Evolution and Significance

HBCUs were founded to educate Black people in a manner quite different from that of White people. Even the Quakers and other allies who established private HBCUs before the end of the Civil War were driven by White majority ideologies, and the education in those institutions was limited.^[143] Later, especially after the Civil War, the curricula of many HBCUs broadened to provide an industrial education to freed African slaves, so they could obtain jobs.^[144] Hence, HBCUs have long served the communities in which they are located.^[145] However, unlike the “unspoken curriculum” of White institutions, which historically perpetuated racist ideologies to fortify White supremacy, as posited by SDT, the “unspoken curriculum” of HBCUs was never anti-White.^[146] Instead, HBCUs focused on creating safe and affirming spaces for Black students, where they could develop their professional identities away from racial animus.^[147]

Often, the only means to receive a higher education for Black students in the past, HBCUs quickly evolved to include “providing access to higher education for society’s underprivileged and disenfranchised.”^[148] Few could argue against HBCUs’ role in diversifying the higher education pipeline. As law professor and author Kamille Wolff stated in her article, From Pipeline to Pipe Dream: The HBCU Effect on Law School Deans of Color, “[t]he pipeline to racial diversity within higher education would be virtually non-existent without the HBCU effect, which continues to train, educate, and prepare thousands of African American, Latino, and Asian candidates for their journey into the pipeline.”^[149]

Currently, HBCUs only represent three percent of higher education institutions in America, which is not surprising given that the White majority systems (directly and indirectly) control the funding and growth of these institutions.^[150] However, HBCUs continue to educate a large portion of Black students.^[151] To add, despite enrolling twice the number of Pell Grant recipients, i.e., students having lower income status when compared to predominantly White institutions (“PWIs”), HBCUs are responsible for incredible success stories in America.^[152] First, fifty-one percent of HBCU graduates are likely to move into higher economic brackets versus those who attend PWIs.^[153] More importantly, HBCUs are a pipeline to professional and graduate schools, responsible for “eighty percent of all Black judges, fifty percent of all Black lawyers, forty percent of all Black engineers, forty percent of all Black U.S. Congress members, and 12.5 percent of Black CEOs.”^[154] Although detractors argue that HBCUs are no longer necessary in the absence of de jure segregation, de facto segregation, often still seen in primary and secondary education systems in this country, supports an argument to the contrary.^[155] In fact, in light of recent attacks on higher education and the adulteration of diversity, equity, and inclusion, the safe, affirming spaces provided by HBCUs to Black and other underrepresented populations are more vital than ever.

Most particularly, HBCU law schools are hierarchy-attenuating, as they are not only instrumental in creating pathways to the legal profession outside the traditional elite law schools, but are also critical to diversifying the legal profession by fostering professional identities resistant to maintaining existing hierarchies.^[156] There are six HBCU law schools in the U.S.: Florida A&M University College of Law (1951), Howard University School of Law (1869), North Carolina Central University School of Law (1939), Southern University Law Center (1947), Texas Southern University Thurgood Marshall School of Law (1946), and the University of the District of Columbia School of Law (1996).^[157] Since their founding, HBCU law schools have been instrumental in producing Black lawyers, today in near-historic numbers.^[158] HBCU law schools historically graduate “upwards of ninety percent of Black law school graduates.”^[159] And while that percentage has decreased, currently, HBCU law schools still play a major role in diversifying the profession.^[160] In fact, even if their mission statements no longer mention Black people explicitly, there is still an implied duty to serve the Black community.^[161] In that role and as a “part of the very fabric of the African American community,” HBCUs are in an opportune position to solve some of the problems uniquely experienced by Black people in America.^[162]

2. Financial and Resulting Accreditation Struggles

Assuming a leading role in the fight for continued diversity and equal access to higher education may be difficult for HBCU law schools, as they are and have always been disproportionately underfunded.^[163] While it may have made more sense when they were founded as “normal schools” in the nineteenth century, in light of the White majority ideology of the subjugated and newly freed slaves, it strains reasoning why this problem of underfunding persists. Or does it? While there have been some shifts in individual ideologies since that time, one need only look at the institutions and systems built by the White majority to see that, for the most part, they have withstood change. By their very existence and their focus on educating Black and other disenfranchised people, HBCUs run counter to White majority hegemonic spaces and threaten the existing power structure in America.^[164] Hence, their systemic underfunding is yet another tool of the White majority to ensure that the existing power structure holds in America.

At the federal level, Congress’s attempts to provide more equitable funding for HBCUs stand as a testament to the difficulty in shifting institutional and systematic impediments to diversity. Much like the Morrill Act, which was intended to provide some form of equity in the formation of land-grant institutions,^[165] Title III of the Higher Education Act (“HEA”) was intended to provide some level of equity in funding for HBCUs.^[166] Title III specifically serves “minority-serving institutions” and “focuses on equalization of opportunity at institutions catering to large percentages of minority and low-income students.”^[167] Congress added Part B to Title III, titled the HBCU Aid Act, in its 1986 reenactment of the HEA, “acknowledg[ing] HBCUs as a defined class of institutions” and “recognizing these institutions’ collective contribution to the ‘effort to attain equal opportunity through postsecondary education for Black, low-income, and educationally disadvantaged Americans.’”^[168] With the 1986 iteration of the HEA, Congress sought to provide some stability and support the mission of HBCUs.^[169] However, these efforts have not been sufficient to fully finance and sustain HBCUs at the same level as PWIs, and will probably never be so if one looks at the social dominance of the White majority in America.

As a preliminary matter, while Title III funding is helpful, Title III funding is limited to specific categories of expenses,^[170] which will not fully cover all the financial needs of HBCUs. Further, Title III funding cannot close the historic gap in funding between PWIs and HBCUs for several reasons, including disparities in state funding between the two, smaller endowments at HBCUs, lower alumni giving, and the politics of race and general lack of support, especially by the White majority, for HBCUs.^[171] Much of the funding for public HBCUs emanates from, or is controlled by, the states in which they exist. As the majority of HBCUs are located in the South,^[172] funding for those HBCUs has always been disproportionately lower than that of PWIs due to politics and systemic racism that persist there.^[173] The White majority still views HBCUs as a threat to their institutional monopoly in higher education.^[174] Moreover, as Black people and other minoritized populations tend to have less wealth than White people, that wealth gap generally translates into an alumni giving gap as well.^[175] This public and private disproportionate funding has even more dire consequences for HBCUs, including their law schools, as it also impacts their ability to remain accredited.

For too long, HBCUs and their law schools, in particular, have struggled to remain solvent and accredited, in contrast to the elite private or public law schools whose funding has generally increased. Law school is expensive, and therefore, it is not surprising that law students select those institutions that will allow them to repay their student loans after law school.^[176] For that reason, elite private and public law schools attract the best and brightest, meet their admissions goals easily, and can charge higher tuition because their graduates will obtain higher-paying jobs upon graduation and will be able to afford larger student loan debt loads.^[177] However, lower-ranked schools, like HBCUs, must charge less tuition as their graduates earn much less upon graduation and, therefore, cannot afford a large debt load.^[178] This creates a related problem with the American Bar Association (“ABA”), the organization that accredits law schools.

First, some critics have alleged that ABA accreditation doubles law school costs: “accreditation standards effectively fix and raise faculty salaries, limit faculty teaching loads, require high numbers of full-time faculty rather than less expensive part-time adjuncts, and require expensive physical facilities and library collections.”^[179] HBCU law schools must then pass along these increased costs to their students to remain solvent, and as previously discussed, most HBCU law schools do not have the enormous endowments and other private funding that more elite schools enjoy.^[180] Moreover, because HBCU law schools typically enroll students with lower performance indicators, these schools also struggle to meet certain accreditation standards, which places them under a continued cloud of uncertainty.^[181] For example, in 2017, Texas Southern University’s Thurgood Marshall School of Law was strongly encouraged to raise its admitting LSAT score, or face losing accreditation.^[182] Similarly, North Carolina Central University School of Law has grappled with a low bar passage rate, which many posited was tied to the admission of students with lower LSAT scores.^[183] To retain its accreditation, NCCU set a minimum LSAT score for the first time in its existence in 2017.^[184]

To add, the ABA’s accreditation process (and its effect) is a good example of how changes in individual ideologies are often insufficient to change the institutional culture of organizations. While many of the more recent members of the ABA governing body have hierarchy-attenuating ideologies, whether as minorities themselves or learned through many years of interacting with others who are members of other minority out-groups or addressing their own in-group biases, the organization itself is still very much hierarchy-maintaining.^[185] Indeed, the ABA has made strides towards becoming more sensitive to fostering diverse professional ideologies,^[186] but the organization was built upon many of the White majority ideologies of long ago.^[187] Hence, many of its accreditation standards, perhaps unintentionally, are hierarchy-maintaining as well, because they favor elite law schools that are better funded by their state legislatures and/or enjoy robust contributions from their alumni and other philanthropic organizations, and are, therefore, better able to meet all the required ABA Standards.^[188]

In sum, there has always been opposition and threats to HBCUs and HBCU law schools’ very existence,^[189] which is not surprising considering their hierarchy-attenuating nature. Even after Jim Crow and before the more recent attacks against higher education as a whole by the Trump administration, HBCUs have been scrutinized as being duplicative, substandard, or just wrong.^[190] But particularly, HBCU law schools are the heart of diversity in legal education and are no less necessary today than they were in 1869, when the first HBCU law school, Howard University, opened its doors. A view of this country’s higher education system(s) through the lens of SDT makes the continued importance of HBCUs in America crystal clear. In the absence of affirmative action, HBCUs will be needed to hold the line against the retrenchment of racist dominant group ideologies.

IV. SFFA and its Criticisms and Implications

Having set forth the theoretical framework and the historical backdrop of segregation in American higher education, this section discusses SFFA to illustrate its importance as a watershed event in present-day White majority ideology and this country’s move backwards to once again embrace unequal access to higher education. Here, the Article provides particular insight into how the Supreme Court’s opinion was not only traditional constitutional analysis but also a majority-created and serving vehicle to “disproportionately allocate desired goods” to members of the White majority.^[191] Through the lens of SDT, it appears that in SFFA, the Court functioned not merely as a legal interpreter but also as a hierarchy-maintaining institution. To that end, SFFA represents institutional discrimination in its most sophisticated form—using constitutional principles to achieve hierarchy-maintenance goals.

With a stroke of a pen, in SFFA, the U.S. Supreme Court once again legalized unequal access to higher education. The myths of the “colorblind constitution,” “merit-based college admissions,” along with “individualism being better than group treatment” were on full display.^[192] As the belief that demographic and political power shifts were threatening White people’s perch atop the racial hierarchy,^[193] the fear that elite universities were becoming too diverse,^[194] and the sense that affirmative action was indeed a threat to White education began to bubble up in the country,^[195] the Court acted to preserve the White majority social dominance. After all, SDT research shows that individuals who are high in SDO (like our Supreme Court justices) will act in a discriminatory manner when their majority group is threatened.^[196] Under these circumstances, the Court’s opinion was inevitable.

A. A Summary of the SFFA Decision

SFFA consists of two cases, Students for Fair Admissions v. Harvard and its companion case, Students for Fair Admissions v. University of North Carolina.^[197] In both cases, the plaintiff, an organization created by Edward Blum, challenged the consideration of race in college admissions.^[198] Significantly, Blum is a “conservative legal strategist” who has worked tirelessly to reverse more than forty years of legal precedent that allowed such consideration.^[199] For a time, Blum seemed to be a lone voice, spouting White majority ideologies of old. But after failed attempts in several cases, including Shelby County v. Holder, Fisher v. University of Texas (I and II), and Evenwel v. Abbott,^[200] Blum scored big in SFFA.

In the case against Harvard College (“Harvard”), SFFA alleged that, “as a federally funded program, Harvard’s consideration of race in admissions, as one of many factors, violated Title VI of the Civil Rights Act of 1964.”^[201] In the case against University of North Carolina (“UNC”), SFFA alleged that “UNC’s race-conscious admissions policy violated the [Fourteenth] Amendment to the U[nited] S[tates] Constitution.”^[202] Both institutions had an admissions scheme that included race, along with many other factors, to assess a candidate’s application for admission.^[203] To be clear, before implementing these race-conscious admissions policies, both institutions had a long history of excluding racial minorities.^[204] In terms of its procedural posture, both admissions programs were found to be permissible under the Equal Protection Clause and the Supreme Court’s precedent.^[205] In the Harvard case, the First Circuit affirmed the trial court’s decision, and the Supreme Court granted certiorari.^[206] And in the UNC case, the Supreme Court granted certiorari before judgment in the court below.^[207]

At the time of the Court’s October 2022 hearing of the two cases, for some forty-five years, the law of the land had permitted race-conscious admissions policies, (also known as affirmative action programs) so long as it was narrowly tailored to accomplish a compelling governmental interest, i.e., passed strict scrutiny.^[208] However, in SFFA, with Chief Justice John Roberts writing for the majority,^[209] the Court introduced a new level of “strict scrutiny” to conclude that the policies, “however well-intentioned and implemented in good faith,” did not pass constitutional muster.^[210] Until the Court’s decision, many institutions of higher education had been using race as one of many factors, in a holistic fashion, to ensure some modicum of diversity in their admissions process.^[211]

Significantly, diversity has long been held to be a compelling governmental interest,^[212] and despite a conclusion that was incongruent with this long-held premise, the Court seemed reticent to disavow this position. Instead, the Court took issue with the manner by which Harvard and UNC sought to achieve it.^[213] While the Court applauded both the institutions’ stated “educational benefits of diversity” as “commendable,”^[214] it criticized their affirmative action policies for being insufficiently coherent and measurable to justify giving any preference based on race, even if race was one of many considerations.^[215] In particular, the Court criticized the plus factor given to an applicant based merely on their checking the box for race (even if that factor was one of dozens considered).^[216] The Court also criticized the six racial categories used by Harvard and UNC to identify minoritized applicants—(1) Asian, (2) Native Hawaiian or Pacific Islander, (3) Hispanic, (4) White, (5) African American, and (6) Native American—as “imprecise and arbitrary” as well as stereotypical.^[217] Nonetheless, the Court asserted that “nothing in [its] opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”^[218] The Court explained that an applicant’s experiences with race could show “courage and determination,” or “that student’s unique ability to contribute to the university”—things that were certainly germane to their admissions application.^[219] The Court submitted, “the student must be treated based on his or her experiences as an individual—not on the basis of race.”^[220] This analysis seemed to legitimize the myth that somehow the treatment of race by group or category was flawed and that individualism in this instance would eliminate systemic discrimination.

There were three separate concurrences. Justice Gorsuch (joined by Justice Thomas) argued that Title VI of the Civil Rights Act categorically prohibits any consideration of race in admissions at federally funded institutions.^[221] His broad analysis suggested that race-conscious DEI programs could also be unconstitutional.^[222] Justice Kavanaugh acknowledged ongoing racial discrimination but cautioned against indefinite use of race-based policies, suggesting alternative approaches like civil rights laws and race-neutral measures.^[223] In his separate concurrence, Justice Thomas took an originalist view that the Constitution is colorblind and that all racial considerations, including affirmative action, violate the Fourteenth Amendment.^[224] Though the majority did not explicitly overrule Grutter, Justice Thomas noted that the Court’s holding in SFFA effectively made it irrelevant.^[225]

Finally, in a dissent almost as long as the majority opinion, Justice Sotomayor, joined by Justices Kagan and Jackson (only in the UNC case), engaged in a didactic excoriation of the majority opinion. As anticipated, the liberal justices sought to pull the Court back from its return to unequal access to higher education.^[226] Justice Sotomayor sagely warned that the majority’s vision of race neutrality “will entrench racial segregation in higher education because racial inequality will persist so long as it is ignored.”^[227] Reminding the majority of Harvard and UNC’s institutional history of racism, Justice Sotomayor emphasized the positive impact that race-conscious admissions policies have had on educational opportunities and campus diversity for all students.^[228] Curiously, much like the majority, the dissent also highlighted the potential for universities to continue using other methods to achieve diversity, such as focusing on applicants’ experiences and contributions to their communities.^[229] Most importantly, the dissent advised that while it is an impediment, SFFA could not permanently halt America’s progress towards racial equality.^[230]

Such an opinion, as divided as the country and its politics seem to be at this time in history, has been met with criticism and approval. And regardless of the Court’s intent, SFFA has had tremendous impact on American society and higher education, particularly.

B. Criticisms and Implications of SFFA

The SFFA opinion has been criticized for both procedural and substantive flaws. Additionally, the opinion has a plethora of implications, especially for HBCUs and their law schools. Just two years have passed, but America is still feeling the reverberations from the Court’s seismic shift in constitutional jurisprudence.

1. Criticisms of SFFA

First, there were two core procedural criticisms: the Court’s decision to grant certiorari to review the cases in light of its procedural posture^[231] and the integral standing issue.^[232] From the outset of the majority opinion, it appeared that the Court was straining to reach an intended result, as if to set the stage for a return to racial segregation. Not only was there an issue with SFFA’s standing,^[233] procedurally, the Court had to reverse two lower courts’ decisions in the Harvard case and one in the UNC case, finding the usage of race-based admissions permissible, based on the facts presented during the respective trials and years of legal precedent.^[234] Many posit that the conservative composition of the Supreme Court prompted the Court’s decision to grant certiorari in these two cases, not any pressing legal issue(s).^[235]

Indeed, peering through the SDT lens, the answer becomes clear. Once again, the Court, at a time of high White majority anxiety, chose the agenda of the White majority over that of the minoritized and underrepresented. To explain, justices with higher SDO (typically those from dominant groups) are more likely to support decisions that maintain existing hierarchies.^[236] Moreover, the conservative majority is composed of those justices with higher SDO tendencies.^[237] Here, because knowledge is power, what better mechanism to ensure that power remains vested in the majority population than cutting off equal access to education (or any mechanism meant to ensure that access).

Regarding the opinion’s more substantive weaknesses, critics have decried the majority’s discussion of the Constitution as colorblind, its “burying Title VI;” its sloppy handling of the twenty-five-year directive in Grutter; its “cherry-picking non-education affirmative action cases” to support its analysis; and its complete disregard of well-settled legal precedent.^[238] Additionally, critics point to the Court’s “ignoring the big picture of the majority decision in Fisher II, reducing the holding as sui generis;” its reliance on “hypothetical future actions” of the respective schools versus the known facts; the Court’s failure to discuss legacy and wealthy donor admissions; and most importantly, the “pointed and heightened” vitriolic exchanges between justices in the Court’s opinion.^[239]

Again, almost like contortionists, the majority ignored decades of its own precedent to reach its decision. Particularly, the Court’s discussion of the Constitution as colorblind is puzzling, especially in light of years of case law that shows quite the opposite and social science data that point to the dangers of utilizing a colorblind analysis in racial discourse.^[240] Ironically, as much as the Court portends to avoid it, this colorblind construct still requires some recognition of race, because “as a racial ideology, . . . [c]olorblindness must assume that racial meanings exist before it can refuse to acknowledge their existence.”^[241] In fact, as explained by SDT, the majority does little but seek to legitimize the myth that ignoring race will achieve equality, as well as peddle the White majority fiction that current systems are (or should be) based purely on merit.^[242]

Moreover, while the Court referenced Grutter and acknowledged the twenty-five-year timeline discussed there, the majority clumsily disregarded that timeline without real reason, seemingly determining that in our “colorblind” society, the protections of Grutter were simply no longer necessary.^[243] Its analysis was similarly devoid of any real discussion of Title VI (beyond noting its likeness to the Fourteenth Amendment)^[244] and the incongruence of legacy and wealthy donor admissions, despite the arguments of the respondents.^[245] Furthermore, Fisher II and other precedent were ignored or short-shifted in favor of the use of less analogous, non-education cases and a discussion of hypothetical possibilities. From the opening paragraphs to the end, the majority’s decision seemed very result-oriented, more so than well-reasoned. While many Americans were surprised and a bit disappointed by the Court’s opinion in SFFA, the SDT framework forecasts such a response. In light of the Court’s majority right-leaning composition, the shift in White majority ideology, and peak demographic racial anxiety, the Court’s decision to maintain the existing hierarchy was certain.

2. Implications of SFFA

After SFFA, many asked whether affirmative action was dead. They wondered had the Supreme Court’s decision to support the existing White majority ideology and maintain the existing hierarchy set this country on a course back to resegregation. Right after SFFA was decided, the sentiment was pessimistically hopeful. Based on the decline in underrepresented populations in the more elite public universities in California and Michigan after those states amended their respective constitutions to prohibit the consideration of race in college admissions decisions,^[246] most experts were sure that there would be “[d]eclines in Black, Hispanic/Latino, and Native American enrollment at highly selective colleges,” but they acknowledged that these declines would “depend on how institutions interpreted the decision and guidance issued by the United States Departments of Education and Justice.”^[247] Admittedly, experts agree that it will be some time before the true impact of SFFA on minority enrollment in higher education is known. However, in the first year after the decision, data from a 2024 New York Times study of enrollment trends at sixty-six elite institutions shows that both Black and Hispanic student enrollment decreased an average of one percent, despite having trended upwards every year for more than a decade.^[248]

After SFFA, the Biden administration was clear in committing “to equal access and educational opportunity for all students” and noted that it would “support higher education institutions in their pursuit of lawful practices to enhance student body diversity.”^[249] However, more recently, under the Trump administration, it has become clear that SFFA was the lynchpin to the retrenchment of segregation (or at the very least, unequal access) in higher education.

Additionally, whether intended by the Supreme Court, the decision has spawned additional litigation challenging race-conscious programs used by employers,^[250] especially law firms,^[251] heightened the vitriol of far-right politicians,^[252] and spurred state governments to cancel race-conscious practices in public institutions (including universities).^[253] SDT certainly supports this result: with the Court’s support of the White majority ideology in SFFA—an ideology that seems to back away from approximately forty-five years of Court precedent that held race-conscious admissions in higher education to be constitutional^[254]—others will certainly be emboldened to extend its reach to other institutions beyond higher education. Many argued that SFFA would support further investigation into the admissions policies of the more elite PWIs if their minoritized populations increased after the decision,^[255] but few could predict what is occurring at this time in American higher education.

Arguably, the decision served as impetus for Trump Era executive orders that are nothing short of an all-out assault on any vestiges of minority-serving, race-conscious admission practices.^[256] Since the beginning of his second term in office, President Trump has signed approximately forty executive orders that impact higher education, four of which are directly related to diversity, equity, and inclusion. In fact, under the auspices of equal treatment for everyone, there has been a decided retrenchment of pre-Civil Rights principles under Trump’s second presidency.^[257] There has been a reinterpretation of Civil Rights laws and governmental reorganization that virtually ensures that the protections secured many years ago will be inaccessible to the populations who most desperately need them.^[258] Currently, there seems to be more concern for the majority population than minority populations that have been historically underrepresented in higher education as well as in the middle and upper-class of American society. After SFFA, all roads seem to lead back to separate but (un)equal, or at least, an increased inequality in the access to higher education.

Many of the White majority misunderstood race-conscious admissions as some sort of “a guarantee of results, as opposed to an effort to equalize opportunity.”^[259] Though the numbers of minority students admitted at more selective institutions were, in truth, relatively small,^[260] for many like Blum and his specially constructed group, they were apparently too many.^[261] Indeed, SDT clarifies that such a response is to be anticipated under the circumstances. Though, for a time, the interests of the majority and the minority populations converged in America,^[262] when the White majority population began to see diversity as a threat to their dominance, a notable shift in ideology was seen.^[263] Predictably, fearmongering and dog whistle politics took center stage in ensuring that the White majority population remained just that.^[264] Further, the Supreme Court, one of this country’s most powerful institutions, when faced with an opportunity to halt this shift, chose to double down and maintain the hierarchical structure of old. And in its midst, any gains in equal access to higher education will be lost. For this reason, the continued existence of HBCUs, particularly HBCU law schools and their equal financial funding, becomes even more critical to American democracy.

V. HBCUs After SFFA: impacts And Moving forward

In the more recent past, many people questioned the continued need for HBCUs as admission to PWIs was offered to minoritized populations.^[265] However, in the wake of SFFA and the current political climate, it is questionable whether minoritized applicants will continue to be admitted to those institutions. And if so, there is little doubt that their admissions will be at a lower rate.^[266] Inevitably, in the absence of affirmative action,^[267] HBCUs will bear the burden of educating Black students and other minoritized populations, and ensuring diversity in higher education.^[268] For the legal profession, specifically, HBCU law schools will be at the forefront of creating alternate power structures in America, producing the next generation of “social engineers” to challenge unjust social hierarchies and work against dominant group interests.^[269]

However, to take the lead on ensuring the continued diversity of higher education and various professions, including the legal profession, HBCUs will need better support and perhaps some thought given to legal education reform in order to address elite law school dominance. Otherwise, the wishes of the White majority will once again be allowed to overshadow the interests of the democratic good of all Americans—the in- and out-groups of our society. Consequently, any progress made in the fight for diversity and racial equality will certainly be lost, and we will all lose.

A. Impacts on HBCUs, Including HBCU Law Schools

The additional workload that must now be borne by HBCUs, in the absence of affirmative action, comes with costs and impacts. First, those minoritized students, who are denied admission to some of the more selective schools—PWIs that can no longer use race-conscious admission practices—may increasingly seek admission to HBCUs. While this increase seems positive, most HBCUs do not have the infrastructure to support the larger population due to historically disproportionate funding.^[270] Moreover, those students who may have long been almost assured admission to HBCUs may find themselves denied admission as other minoritized applicants (with higher indicators) take those seats.^[271] Even more alarming, it is well settled that our nation’s leaders are most often educated at the more elite colleges and universities.^[272] The same is true of leaders in the legal profession.^[273] Accordingly, under the auspices of SFFA, the leadership of our country and the legal profession will become even more monolithic than it is currently.^[274] As one expert noted, America may begin to resemble a post-Apartheid South Africa more than a mature democracy.^[275] Action must be taken to ensure that this does not occur.

1. More Students without More Resources

SFFA, along with the messaging of the political right and the Trump administration’s seeming retrenchment of segregation, virtually guarantees that more minoritized students will seek admission to HBCUs, including HBCU law schools.^[276] Although increased applications and admissions may be a greater source of income, the fiscal well-being of these institutions will remain unstable as historically weak governmental funding and inadequate endowments and alumni giving will not be sufficient to keep up with the demand. In cases where state government funding is based on performance-rated enrollment, there is often a funding lag of at least one year after the influx of new students.^[277] As well, the political climate and current economic forecast make it improbable that alumni giving and endowments will increase.^[278] Along with the historical financial impediments, eroding infrastructures, insufficient technology, and the increasing costs of enrollment make any increase in student population more of a hazard than a benefit to HBCUs’ bottom lines.

Of late, the news media has highlighted student protests about HVAC problems in campus buildings and housing shortages, as well as deficiencies that are sure to be exacerbated by increased enrollment post-SFFA.^[279] And it is not that PWIs do not also have these problems, but they usually have necessary resources to address them in a timely and effective manner.

Relatedly, these fiscal and physical setbacks often lead to adverse accreditation action.^[280] At the undergraduate level, though HBCUs comprised less than ten percent of the schools in the region, more than twenty-five percent of them were under some type of accreditation sanction by the Southern Association of Colleges and Schools (“SACS”), the accrediting body for all of the HBCUs located in the South.^[281] The same is true for HBCU and mission-driven law schools.^[282] Because some of the accreditation standards address the fiscal health of the institution and the facilities, HBCUs find themselves at a disadvantage during the reaccreditation process.^[283] While none of the ABA-accredited HBCUs^[284] are currently in imminent jeopardy of losing their accreditation, most have been (in the recent past) the target of investigation or probe by the ABA or the university’s Board of Governors about its accreditation or very existence, respectively.^[285] In this very circuitous (but not unintended) way, the dominate group’s funding model negatively impacts the law school’s finances as well as its ability to exist.

In short, without sufficient funding, the influx of students at HBCUs after SFFA could be the undoing of this very important weapon in the fight for diversity. As hierarchy-attenuating institutions that educate lawyers to challenge rather than maintain existing hierarchies, HBCUs (and their law schools, especially) are critical to turning back the tide of unequal access to higher education and, more generally, retrenchment of segregation and its many ills in our society.

2. Decrease in Black Lawyers and Leaders

Another, more dire, consequence of SFFA is the decrease in Black lawyers and leaders writ large. First, the end to race-conscious admissions will mean that some Black law students from elite law schools will be displaced to the second tier, including public university law schools with excellent learning outcomes,^[286] but those seats will become limited as well by the dictates of SFFA. In fact, the “trickle-down effect” of the loss of seats for Black students in elite and other PWI law schools means that seats that were usually filled by Black and other minoritized students at HBCU schools and law schools will be filled by those Black, and other minoritized, students who can no longer gain admission to PWIs, which will result in a population of students who would normally gain entrance to HBCUs being denied admission there.^[287] Further, because HBCUs historically have been institutions of last resort for many Black students,^[288] those students may lose their access to higher education. Hence, the loss of diversity at PWIs will cause a net loss in opportunities for higher education for Black and other minoritized students.^[289]

Furthermore, there will also be a net loss of diversity in the legal profession and in other leadership positions in this country since HBCUs traditionally serve as feeder schools for many Black professionals—lawyers, doctors, PhDs—and with losses there (as well as PWIs), there will be fewer Black professionals.^[290] More pointedly, since elite law schools are the gateway to most federal clerkships, judgeships, and top law firms,^[291] the loss of race-conscious admissions in those institutions will certainly mean that the few opportunities that were once available for their Black, and other minoritized, graduates will be lost, and any progress made, though admittedly little, will be lost.^[292] This loss benefits the White majority and maintains the existing hierarchy in America. Thus, peering through the SDT lens at SFFA, the decision appears to be more predictable and hierarchy-maintaining behavior than just constitutional interpretation.

B. Moving Forward

While SDT provides insight into what is happening and why it is happening, it cannot solve the problem. Despite the many challenges, some scholars see this moment in history as an opportunity to “fix” the broken higher education system—to recalibrate so that a small number of elite institutions no longer determine the professional trajectory of so many.^[293] They point to SFFA as a watershed moment in higher education to recognize that less selective schools enroll and graduate many highly capable students and hiring these graduates for prestigious jobs is a viable, thus improving diversity. HBCUs, including HBCU law schools, are an excellent example of those less selective schools that graduate stellar students who can help to improve the diversity of high-level jobs and professions, like the legal profession.^[294]

However, as institutions birthed out of separative politics that are at the forefront of society’s more integrative goals, HBCUs will need to be strengthened for the struggle. They will need assistance to shore up funding deficiencies that continue to affect their infrastructure and capacity to be maximally efficient. More equitable funding and creative funding models, along with changes or modifications in the accreditation process, would make a profound difference in the trajectory of HBCUs and their law schools.

1. A Shift in Funding Models and Expectations

As noted in Section II, funding levels at HBCUs, generally, and their law schools, specifically, have long been significantly lower than PWIs. An obvious solution to this problem is to mandate that all institutions of higher learning receive equal or equitable funding. In fact, several HBCUs have filed such lawsuits to do just that—and they have been successful.^[295] Mississippi and, more recently, Maryland HBCUs successfully sued their respective state legislatures alleging that historic funding inequities jeopardized their very existence.^[296] But such litigation is expensive and time-consuming, without any guarantee of success, especially in light of the political climate in our state and federal governments.

Further, more equitable public funding for HBCUs (without litigation) is not likely to occur anytime soon for several reasons: the intricacies and variety of funding formulas used by their respective states to distribute funds to public colleges and institutions;^[297] the current racial and political dynamics of governmental funding agencies;^[298] and the current tenuous nature of grants and endowment funding (government and private) because of a less stable economy.^[299] Accordingly, while HBCUs wait for state and federal governments to recover from the Trump-era retrenchment in racism and segregation, corporate sponsorships and partnerships will be critical to HBCUs.^[300]

Although corporate sponsorships and partnerships are currently a source of funding for HBCUs, research shows that they are ranked below federal and state funding and alumni donations.^[301] To better meet the needs of HBCUs today, that order must change, so that corporate sponsorships and partnerships become a larger part of their funding sources.^[302] Indeed, as HBCUs continue to push for more equitable federal and state funding and grow its alumni giving, current trends support the continued growth of “strategic alliances” with corporate entities.^[303] Saliently, “such partnerships not only bring financial support,” which is key for HBCUs, but they also engender benefits beyond mere monetary gain, offering “opportunities for collaborative research, internships, and workforce development.”^[304]

To develop such sponsorships and partnerships, HBCUs must be clear about their goals for these relationships, i.e., their motivation and context for them.^[305] Once the institution has identified the potential corporate partner, the stakeholders from each organization will need to be identified, and will need to meet and begin communication to build a relationship, as trust is important in these partnerships.^[306] Both the HBCU’s and the corporation’s goals will need to be discussed and communicated in writing, perhaps by way of a traditional contract or memorandum of understanding.^[307] Finally, the lines of communication must be kept open, discussing the successes and challenges that are encountered to ensure the sustainability of the relationship.^[308]

To form successful and sustainable sponsorships or partnerships, HBCUs and their corporate partners may need to adjust their respective operations.^[309] Initially, HBCUs may need to bolster their offices of institutional advancement to include personnel who understand corporate models.^[310] They may also need to designate specific members of the HBCU President’s leadership team to work on the collaboration as HBCU leadership tends to have a wider range of daily responsibilities, which may slow down response rates to critical decision-making.^[311] Such inefficiencies may jeopardize corporate sponsorships and partnerships. To that end, corporate partners will need to know (and appreciate) “the unique nature” of their partner HBCUs, by “understanding their organizational structure,” so they can “meaningfully engage, foster effective collaboration, and contribute positively to the growth and development of these institutions.”^[312] The corporation must be willing to furnish not only the expected funding, but also human capital, where HBCUs may oftentimes be deficient.^[313] These considerations and actions will foster understanding about the needs of each entity, and both the HBCU and its corporate partner are more likely to see the relationship as mutually beneficial, which will make the collaboration sustainable.^[314]

HBCUs are attractive partners because of their diverse populations,^[315] despite the new push in America to jettison all DEI programs. Globally, corporations cannot deny the value of having a diverse workforce.^[316] Such corporate partnerships are already at work. For various socially-motivated and other strategic reasons, major companies, such as Bank of America, Coca-Cola, General Motors, Google, Home Depot, IBM, Microsoft, Verizon, and Walmart have all made sizable investments in HBCUs.^[317] In fact, there was a surge in socially-motivated partnerships after George Floyd’s killing in 2020,^[318] and HBCUs must work hard to ensure that those numbers increase (not decrease) in light of the recent political shift in this country and resulting cuts to federal and state-level funding.

HBCUs should be meeting with their existing corporate partners to discuss (and ease) any concerns about their partnerships violating any of the Trump-era anti-DEI mandates. If possible, they should seek to grow those partnerships—extending them in terms of years or increasing the funding levels. Notably, HBCUs do not discriminate and are open to all races, so doing business with them should not violate any anti-DEI mandates. Moreover, these same companies undoubtedly have similar partnerships with PWIs. Corporate responsibility is no less important today than it was under the last few administrations. Additionally, HBCUs should be discussing ways to establish new corporate partnerships with other companies, perhaps some outside of the United States. The appeal of a global society may have been temporarily lost in America, but other countries are forging ahead of us. Hence, HBCUs should start looking for partnerships internationally. What HBCUs cannot afford to do is fail; as hierarchy-attenuating institutions, HBCUs and their law schools must persist in their effort to strengthen themselves for the journey ahead. The next generation of Black leaders depends on them.

2. Collaborative Accreditation

Because the lack of funding has interfered with many HBCUs’ ability to meet accreditation standards,^[319] a closer look at the interplay between funding inequities and accreditation problems must also be interrogated as we seek to strengthen HBCUs.^[320] There must be some reason beyond chance that despite only representing a “small minority” of institutions in the South, “between the years 1996 and 2005, HBCUs represented twenty-five percent of all postsecondary institutions in [that] region facing accreditation sanctions.”^[321] And though institutions may appeal these sanctions or loss of accreditation, the process is long and costly.^[322] Further, without accreditation, neither institutions nor their students can receive federal funds,^[323] and without sufficient endowments and other revenue sources, closure is almost certain, especially for smaller, private institutions.^[324]

As argued by attorney and author Jamie L. Wershbale, in her article, Collaborative Accreditation: Securing the Future of Historically Black Colleges, accrediting bodies should take steps to collaborate with these institutions to better support them in the accrediting process.^[325] “Collaborative accreditation,” as posited by Wershbale, would require that accrediting bodies and institutions work together to develop some accreditation standards that are not only “in line with legislative funding goals,” but which also “promote HBCUs and encourage long-term financial independence and increased student achievement.”^[326] These standards would consider various factors that make accreditation challenging for HBCUs, including the need for structural rehabilitation and remedial education, as well as the institution’s continuing financial concerns.^[327] This collaboration would require that both parties communicate about the needs and deficiencies of the HBCU and would enable the accrediting organization to witness firsthand the disparate fiscal and physical health of the HBCU versus its PWI mate.^[328]

To be more effective, these collaborative standards will need to be institution-specific, designed to “focus on problem areas, such as deteriorating infrastructures, lack of financial controls, insufficient technology, and dwindling [or nonexistent] endowments,” as well as “student achievement, considering elements such as curricula, post-graduation job placements, and faculty and administrative capabilities.”^[329] Significantly, these collaborative accreditation standards would not be permanent and would only be implemented “for a relatively short period of time,” to allow the HBCU to gain better structural and fiscal footing while working earnestly towards meeting accreditation standards. ^[330] And “to ensure good faith during the collaborative process,” Wershbale suggests that there would be a “limited cause of action for HBCUs.”^[331]

I posit that these collaborative standards should be implemented either by the respective HBCU or the accrediting body when it becomes clear that the institution’s accreditation is in peril. Thereafter, during the period of time that the collaborative accreditation standards are in place, HBCUs should be given increased support from the accrediting body: a consultant to assess the institution’s academic and technological needs and progress towards meeting them, a consultant to assist with funding and fundraising, and perhaps a consultant to assist with research and future curriculum development. The institution should also be assured of continued federal funding during that time, and any adverse accreditation action should be held in abeyance during the collaboration period.

Admittedly, there will be those who will oppose collaborative accreditation. First, there are those who do not think that HBCUs or their law schools are worth saving, whether it is because they are reminders of the past or simply unnecessary, regardless of the effect that the absence of affirmative action has had on higher education admissions and what that effect means to diversity in those and other professional spaces.^[332] To them, that viewpoint is well taken, but rejected by most of what has already been said in this Article.

Additionally, some may point to the fact that there are other small colleges that will also want to be accommodated by their accreditors, and that collaborative accreditation is no more than another affirmative action mechanism.^[333] While there may be other small colleges that are experiencing fiscal challenges in the current economic climate and may want to engage in collaborative accreditation practices, the parameters established by Congress in a revised HEA could address that issue at the outset.^[334] After all, Congress has recognized that a broader range of minority-serving postsecondary institutions, which include HBCUs, are struggling under financial and infrastructure deficiencies.^[335] Accordingly, it would be appropriate for Congress to determine whether those other minority-serving institutions should be entitled to collaborative accreditation under a revised HEA, and in doing so, avoid any labeling as a prohibited affirmative action mechanism.

Ultimately, strengthening HBCUs and their law schools is essential for providing higher education opportunities to underserved students who will challenge entrenched power structures and pioneer innovative solutions to systemic inequalities. The transformative impact that these institutions have on students, communities, and the American democracy far outweighs any financial investment required. Collaborative accreditation is not only an equitable method, but it is also a manageable method to bolster HBCUs’ academic, social, political, and economic health. To that end, collaborative accreditation ensures continued equal access to education for Black and other minoritized students and prevents the retrenchment of separate but equal (or at the least, unequal access) in American higher education.

Conclusion

“Education is a means of power; without access to education, people are at a disadvantage to compete for, or participate in, the resources that are made available, even in democratic systems.”^[336]

Even Congress recognizes the power of and need for education. However, as with so many rights in America, minority groups’ access to education ebbs and flows according to the will of the White majority.^[337] If the best predictor of future behavior is past behavior, America and its minority populations are in trouble.

As law professor Nancy Zisk asserts:

The reality remains that race still carries great weight in our society and continues to carve out opportunities and disadvantages based solely on the color of one’s skin. Unfortunately, this remains true across our society, including in our nation’s schools, where race continues [to] divide educational opportunities inequitably and distort perceptions with stereotypes and prejudice.^[338]

Even former Supreme Court Justice Antonin Scalia, a renowned conservative, recognized, “From racist principles flow racist results.”^[339] And unless we do more to fix it, it will persist.

To that end, the urgency of this moment cannot be overstated. It has been estimated that land-grant HBCUs are owed more than $13 billion for systemic underfunding from 1987 to 2020.^[340] Further, data tends to show that both private and public HBCUs across the country continue to lag behind their PWI counterparts in terms of endowments anywhere between $17,000 (public) and $150,000 (private) per student annually.^[341] Moreover, recent actions of the Trump administration’s Department of Education, including the January 2025 executive order prohibiting federal funding for diversity initiatives in higher education^[342] and the more recent cancellation of $350 million in HBCU grants, show the precarious nature of current funding trends for HBCUs and other minority-serving institutions.^[343] Ultimately, these trends will only further jeopardize minority populations’ access to higher education in this country.

Based on history, present day occurrences, and principles of SDT, the retrenchment is upon us. Majority members of the American populace will seek to push their agenda and continue to minoritize those who are not like them, further oppressing all subordinate groups. They will continue to under-resource, undervalue, and under-educate those groups. The systems and institutions that have been put in place by the White majority population will continue in the same vein—supporting the majority population and oppressing Black people and other minoritized populations.

In the absence of affirmative action and other race-conscious practices, HBCUs must move to the front lines to provide access to higher education and to save American democracy. But to do so, HBCUs and their law schools must be strengthened. Innovative corporate partnerships and sponsorships and collaborative accreditation are just two ways to address the longstanding deficiencies created by systematic, disparate funding of these hierarchy-attenuating institutions. In strengthening HBCUs and their law schools, we enable them to better fight against current societal forces that would preserve the existing monolithic hierarchy. Indeed, we enable them to produce the next generation of “social engineers” to nudge us further along the “arc of . . . justice” touted by Martin Luther King, Jr. not so long ago.^[344]

HBCUs are America’s gateway to opportunity and excellence. In a time when access to higher education is under threat, they stand as beacons of hope and engines of social mobility. As traditional pathways to justice and equity narrow, HBCUs and their law schools must not only remain open, but they must also be fortified as essential incubators of leadership, innovation, and justice, guiding this country toward a more diverse and inclusive future.