As discussed in a prior Taft law bulletin, the U.S. Supreme Court's recent decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA) invalidated racial preferences in admissions programs nationwide. Specifically, the court held that the admission policies used by the University of North Carolina (UNC), a public institution, and Harvard University (Harvard), a private university, unlawfully discriminated against some applicants, notably Asian Americans, by considering an applicant's race qua race when deciding whom to admit.1 The court adopted a fundamentally colorblind approach to interpreting Title VI and the Constitution.

Chief Justice John G. Roberts, Jr., authored the opinion for a 6-3 court. Justices Clarence Thomas, Neil M. Gorsuch,2 and Brett M. Kavanaugh filed concurring opinions. Justice Sonia Sotomayor dissented on behalf of herself and Justice Elena Kagan as to both the UNC and Harvard cases and on behalf of Justice Ketanji Brown Jackson as to just the UNC case.3 And finally, Justice Jackson filed a dissenting opinion as to the UNC case and was joined by Justice Sotomayor and Justice Kagan.

The same day that the Supreme Court issued its decision, Equal Employment Opportunity Commission (EEOC) Chair Charlotte A. Burrows issued a press release expressing her view that SFFA "does not address employer efforts to foster diverse and inclusive workforces or to engage the talents of all qualified workers, regardless of their background." Chair Burrows added that "[i]t remains lawful for employers to implement diversity, equity, inclusion, and accessibility programs that seek to ensure workers of all backgrounds are afforded equal opportunity in the workplace."

Time will tell. A careful reading of the SFFA opinion, however, indicates that it jeopardizes the future of Diversity, Equity, and Inclusion (DEI) initiatives undertaken by many employers. As this article goes on to explain, there is a serious argument to be made that the logic of and the signals given by the Supreme Court's SFFA opinion effectively puts employers subject to Title VII on notice that their programs may well be unlawful.4 Because the Supreme Court has interpreted Title VI consistently with the Equal Protection Clause, the majority's analysis focused on the Equal Protection Clause (applicable to public colleges and universities like UNC) without independently addressing Title VI (applicable to all colleges and universities that receive federal funds, including both UNC and Harvard).

The Origins of the SFFA Case

First, a quick background of how the SFFA decision came to be. Students for Fair Admissions, Inc., is a nonprofit organization that filed separate lawsuits against Harvard and UNC in 2014, alleging that their respective admissions policies violated the Fourteenth Amendment's Equal Protection Clause in the case of UNC and Title VI of the Civil Rights Act of 1964 in the case of both universities. After separate bench trials, the federal district judges in North Carolina and Massachusetts, respectively, presiding over the two cases concluded that both universities' (Harvard and UNC) admissions policies were permissible under Title VI, the Equal Protection Clause (for UNC), and applicable Supreme Court precedents, notably Grutter v. Bollinger (2003).5 The First Circuit upheld the Harvard plan and the Fourth Circuit did not have an opportunity to rule on the UNC program. 

Grutter, it is appropriate to recount, had held that the narrowly tailored use of race in university admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body is not prohibited by the Equal Protection Clause, Title VI, or 42 U.S.C. § 1981. When many had expected affirmative action in university admissions to be invalidated, a 5-4 majority of the Supreme Court in Grutter upheld it. Writing for the court, Justice Sandra Day O'Connor approved the limited consideration of race — not as a quota or by way of points but only as one factor among many — in admissions decisions. Conceptually, Justice O'Connor's majority opinion essentially adopted the same approach undertaken a quarter of a century previously by Justice Lewis F. Powell, Jr., in Regents of the University of California v. Bakke (1978).6 Yet the Supreme Court in Grutter gave affirmative action a short, one-generation-at-the-most reprieve. Mentioning that Bakke had approved the limited consideration of race 25 years previously, in 2003 Grutter noted its "expect[ation] that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."7

After years of litigation, the Supreme Court eventually granted certiorari in the Harvard case and granted certiorari before judgment in the UNC case, and the court reversed the judgments of the lower courts in favor of the two universities. Chief Justice Roberts' majority opinion explained that both universities' admissions policies "lack sufficiently focused and measurable objectives warranting the use of race [thus failing strict scrutiny], unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points," adding that a "student must be treated based on his or her experiences as an individual — not on the basis of race." The SFFA court was careful to insist that a university's use of race in admissions had to satisfy each of those conditions.

As the SFFA court and Justice Kavanaugh's concurrence observed, time had run out in part because the universities could not show an endpoint, even an aspirational one.8 The governmental interests most closely aligned with a more flexible timeline had been flatly rejected by Justice Powell's dispositive opinion in Bakke. Even Justice Harry A. Blackmun, who had voted to approve racial quotas in Bakke, had expressed in that case his "hope" that by 1988 (at the latest), affirmative action in university admissions could be sunset.

The Impact of SFFA on Higher Education

It would be facile to pretend that the court's decision does not mark a decisive shift in the way that race is permitted to affect admissions decisions — and beyond. Indeed, the two key pages in the court's analysis precluding the use of race as a negative factor could have been all that was needed to end racial preferences in university admissions. In the court's own words — a theme resounding from the lengthy oral arguments in the Harvard and UNC cases — "race may never be used as a 'negative'" and selection processes "are zero-sum." To Harvard's and UNC's contention that they never use race as a negative factor but only as a positive one, the court's answer was unequivocal: "A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter." Analytically, this pronouncement was sufficient to invalidate, under the Constitution's equal-protection principles and Title VI, any use of race qua race in admissions. But the court did not stop there.

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Footnotes

1. Although the Supreme Court in SFFA used the term "college admissions," there is no doubt that its opinion applies to all academic institutions that accept Title VI funds and practice selective admissions.

2. Justice Thomas joined Justice Gorsuch's concurrence.

3. Justice Jackson had recused herself from the Harvard case.

4. Among others, private sector employers with 15 or more employees are subject to Title VII.

5. 539 U.S. 306.

6. 438 U.S. 265. The Bakke court split 4-1-4. Justice Powell's solo opinion approved the limited role of race in admissions but not explicit quotas. No justice's opinion or point of view commanded a majority of the court in Bakke. Justice Powell's opinion was believed to lay down the controlling principle since it split the difference between the two flanks in Bakke. Whereas Justice William J. Brennan, Jr., Justice Byron R. White, Justice Thurgood Marshall, and Justice Harry A. Blackmun wanted to uphold even explicit racial quotas as consistent with the Equal Protection Clause and Title VI, on the other side Justice John Paul Stevens, joined by Chief Justice Warren Burger, Justice Potter Stewart, and thenJustice William H. Rehnquist thought it enough that, in their view, Title VI prohibited any consideration of race qua race in making admissions decisions and thus did not require them to decide the constitutional question.

7. It has been contended that the carefully-curated diction in this timing caveat did not necessarily mean that universities had all of 25 years — it meant that they had up to 25 years.

8. Justice Kavanaugh noted that "[t]he [SFFA] Court's decision will first apply to the admissions process for the college class of 2028, which is the next class to be admitted."

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