What You Need to Know
- Key takeaway #1The Supreme Court held that admissions programs that consider race as a factor when making admissions decisions, whether as a “tip” in favor of minority students or to try to achieve greater diversity in their student bodies, violate the Equal Protection Clause and Title VI.
- Key takeaway #2But the Court indicated that schools may still consider an applicant’s discussion, in essays and question responses, of how race has affected their life, for example by addressing how they overcame discrimination or race-related obstacles.
On June 29, 2023, the Supreme Court, in Students for Fair Admissions (“SFFA”) v. Presidents and Fellows of Harvard College and SFFA v. University of North Carolina, held that race-based admissions programs violate the Constitution’s Equal Protection Clause (which applies to public institutions such as UNC), as well as Title VI (which applies to private institutions like Harvard).
Educational institutions must assess their admissions programs to determine whether they comply with the rules set forth by the Court. Many schools will have to make adjustments quickly as the new academic year begins—along with the next admissions round. Importantly, the Court’s decision allows schools to continue considering race-related aspects of an applicant’s background through essays and question responses highlighting, for example, obstacles overcome or lessons learned related to race or other diverse characteristics.
Background
SFFA filed separate lawsuits in 2014 against Harvard College and UNC, arguing that the schools’ admissions programs violated Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment. Harvard and UNC both consider race as part of their process, including as a “plus factor” for students on the cusp (others include legacy and recruited athlete status). In both cases, the district court upheld the school’s approach as consistent with federal law and the Supreme Court’s precedent on the consideration of race in admissions. The Supreme Court granted certiorari in the Harvard case after the First Circuit affirmed, and granted certiorari before judgment in the UNC case.
The Majority Opinion
Writing for the majority, Chief Judge Roberts surveyed the history of the Fourteenth Amendment’s Equal Protection Clause. Highlighting the seminal decision in Brown v. Board of Education, Justice Roberts emphasized that its holding was “unmistakably clear: the right to public education ‘must be made available to all on equal terms’” and that “[t]he time for making distinctions based on race had passed.” Justice Roberts noted that the Court “routinely” affirmed decisions that invalidated race-based state action, and reasoned that these decisions “reflect the ‘core purpose’ of the Equal Protection Clause”: to eliminate “all governmentally imposed discrimination based on race.”
The majority then discussed the Court’s decisions in Regents of University of California v. Bakke and Grutter v. Bollinger, which had allowed limited continued consideration of race in the admissions process. Recognizing Justice Powell’s concurrence in Bakke as the “touchstone” for analyzing race-conscious admissions, the Court emphasized that a university did not have “unlimited” academic freedom, and that the role of race had to be “cabined.” In discussing Grutter, the Court highlighted the Court’s “discomfort” with the use of race and its declaration that race-based admissions must end, including an expectation that in “25 years . . . the use of racial preferences will no longer be necessary.”
Relying on its decision in Fisher v. University of Texas, the Court also focused on the requirement that universities must operate their race-based admissions programs in a way that is “sufficiently measurable” to permit judicial review under the strict scrutiny standard. Harvard and UNC had identified educational benefits from diversity including “producing new knowledge stemming from diverse outlooks” and “enhancing appreciation, respect and empathy, cross-racial understanding, and breaking down stereotypes.” But the Court found that these interests could not “be subjected to meaningful judicial review.” Similarly, Harvard and UNC argued that their race-based admissions programs would end when there is “‘meaningful representation and meaningful diversity’ on college campuses,” but the Court rejected this reasoning because it was not clear when those goals would be achieved, and found that the application of the programs to achieve those goals resulted in unconstitutional “racial balancing.”
The Court further found that Harvard and UNC’s admissions programs violated the Equal Protection Clause’s “twin commands” because (1) the Court reasoned that race was used as a “negative,” declaring that “[c]ollege admissions are zero-sum” because “a benefit provided to some applicants but not to others necessarily advantages the former at the expense of the latter,” and (2) according to the Court, race-based admissions programs tolerate stereotyping because the programs assume that all members of the same race are alike.
The Reach and Impact of the SFFA Decision
The Court stated 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.” The Court stated, however, that a school must treat students “based on his or her experiences as an individual—not on the basis of race.” As an example, “[a] benefit to a student who overcame racial discrimination . . . must be tied to that student’s courage and determination.”
The Court indicated in a footnote that its opinion may not apply to race-based admissions programs in the Nation’s military academies, which have unique characteristics, as the Solicitor General pointed out in the United States’ amicus brief. But future cases may bring that question squarely before the Court. And while the SFFA decision addresses public and private higher-ed admissions programs, there is good reason to think that its holding may apply to K-12 admissions processes too. Only time will tell the full reach of this precedent.
The Concurrences
Justices Thomas, Gorsuch, and Kavanaugh each filed concurring opinions.
Justice Thomas wrote to “offer an originalist defense of the colorblind Constitution” and emphasized that the Constitution prohibited “all forms of discrimination based on race—including so-called affirmative action . . .”
Justice Gorsuch argued that along with the Equal Protection Clause, Title VI also “does not tolerate” race-based admissions programs. He highlighted what he deemed Congress’ “simple and profound rule” that “a recipient of federal funds may never discriminate based on race, color, or national origin—period.”
Justice Kavanaugh expounded upon how the Court’s decision followed its past precedents on race-based affirmative action in higher education. He emphasized that the Court’s decision abides by Grutter’s 25-year limit on the use of race-based affirmative action.
The Dissents
Justices Sotomayor and Jackson’s dissents criticize the decision as, respectively, “betray[ing] an unrestrained disregard for precedent” and announcing “‘colorblindness for all’ by legal fiat” with “let-them-eat-cake obliviousness.” Justice Sotomayor’s dissent traces the nation’s legal history to demonstrate that the Constitution was never colorblind, from the passage of race-conscious laws simultaneously with the Fourteenth Amendment to Brown and its progeny. Citing an amicus brief filed by Crowell on behalf of leaders of Historically Black Colleges and Universities (“HBCUs”), Sotomayor points to HBCUs as early beneficiaries of such race-conscious laws.
Justice Sotomayor’s dissent also highlights some of the practical consequences of the Court’s decision going forward. First, she states (as does Justice Thomas in his concurrence) that, although the majority opinion does not say so, “Grutter is, for all intents and purposes, overruled.” Second, she is careful to say that holistic admissions processes themselves are left untouched by the majority’s holding: “To be clear, today’s decision leaves intact holistic college admissions and recruitment efforts that seek to enroll diverse classes without using racial classifications. . . . Colleges and universities can continue to consider socioeconomic diversity and to recruit and enroll students who are first-generation college applicants or who speak multiple languages, for example. Those factors are not ‘interchangeable’ with race.” But, she notes: “Ignoring race will not equalize a society that is racially unequal. What was true in the 1860s, and again in 1954, is true today: Equality requires acknowledgment of inequality.”
The Path Forward
Several universities and colleges (including Harvard and UNC) already have issued statements acknowledging the decision while reaffirming their commitment to diversity. The Justice Department also issued a statement on the decision, indicating that it will issue guidance in an attempt to assist universities in navigating the new rules of the admissions process.
Now, both public and private educational institutions that had previously considered race in some aspect of their admissions processes must consider whether and how they can continue to do so in light of the Court’s decision, and how they might permissibly continue to strive for a racially diverse student body. Crowell’s Education Practice Group stands ready to assist colleges, universities, and K-12 institutions as they navigate this complex new terrain.
For further information, please contact:
Amanda Shafer Berman, Partner, Crowell
aberman@crowell.com
