On June 29, 2023, the US Supreme Court issued its long-awaited decision on the constitutionality of race-based admissions programs in higher education. In a decision that split along ideological lines, the Court held that the admissions programs at Harvard University and the University of North Carolina violate the Equal Protection Clause of the Fourteenth Amendment, and therefore are unconstitutional. Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina (UNC)1, et al. (together, SFFA). The ruling – while expected—denotes a sea change from decades of precedent regarding the consideration of race in higher education admissions.
The Court stated that Grutter v. Bollinger2established limits on race-based admissions programs: (i) they must survive a "daunting" strict scrutiny examination, (ii) they must not lead to "illegitimate stereotyping" and race cannot be used as a negative factor for admission, and (iii) they must have a logical end. The Court found that both Harvard's and UNC's admissions programs violate each one of these limitations. The majority opinion, penned by Chief Justice Roberts and joined by Justices Alito, Gorsuch, Kavanaugh, Barrett, and Thomas,3 carefully avoided explicitly overruling the Court's 2003 decision in Grutter. Justice Thomas' concurring opinion, however, explicitly stated that, "Grutter is, for all intents and purposes, overruled."4
The Majority's Holdings
First, the Court found that Harvard's and UNC's admissions programs failed both requisite prongs of a strict scrutiny analysis. That is, they failed to show a compelling state interest that is narrowly tailored to achieve that interest. According to the Court, the interests identified by Harvard and UNC, which included among other things, "training future leaders," "better educating students through diversity," "broadening and refining understanding," and "promoting the robust exchange of ideas," were "not sufficiently coherent for the purposes of strict scrutiny."5 Further, Harvard and UNC's' use of racial categories was "overbroad," "imprecise," and "underinclusive," which the Court found to undermine rather than promote the universities' goals.
Second, the Court rejected the schools' contention that race is never used as a negative factor in their admissions programs, stating that college admissions are zero sum. "A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter."6 In addition, the Court found that race-based admissions programs lead to impermissible stereotyping by assuming that race is linked to viewpoint.
Third, the Court found that Harvard's and UNC's admission programs lack a "logical end point," relying heavily on Justice O'Connor's statement in Grutter that "[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary."7 The Court also emphasized that outright racial balancing is unconstitutional and criticized Harvard's and UNC's admissions programs for tracking and focusing on numerical commitments year-over-year – thus "flipping that principle on its head." While recognizing that only 20 years have passed since Grutter was decided, the Court did not agree that race-based admissions programs must be allowed to continue for five more years, stating that the 25-year mark reflected only the Court's view that the use of racial preferences would no longer be necessary at that point. And while the Court recognized a "tradition of giving a degree of deference to a university's academic decisions," it stated that such deference is limited and insufficient to justify upholding the universities' policies under the strict scrutiny standard.
While the Court found that Harvard's and UNC's use of race-based considerations in their admissions programs exceeded the limits of Grutter, it did leave open a window for an indirect use of race in admissions programs. "Nothing in this opinion should be construed as prohibiting universities from considering an applicant's discussion of how race affected his or her life, be it though discrimination, inspiration, or otherwise."8 The Court cautioned, however, that universities "may not simply establish through application essays or other means the regime we hold unlawful today." The consideration of race must be tied to a student's individual experiences, "quality of character," or "unique ability." The implications of that language will be the focus for schools and others reworking their admissions programs.
The Dissents
In their dissents, Justices Sotomayor and Jackson criticize the majority's race-neutral reading of the Fourteenth Amendment and predict that the Court's decision will only serve to exacerbate racial disparities in higher education so long as race is ignored. Justice Jackson's dissent in UNC states: "[w]ith let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces 'colorblindness for all' by legal fiat. But deeming race irrelevant in law does not make it so in life."9 Justice Jackson continues, "[t]he takeaway is that those who demand that no one think about race (a classic pink-elephant paradox) refuse to see, much less solve for, the elephant in the room— the race-linked disparities that continue to impede achievement of our great Nation's full potential."10 Justice Sotomayor conducts a detailed discussion of how de facto and de jure racial discrimination in the US necessitates affirmative action before declaring that, "[a]t its core, today's decision exacerbates segregation and diminishes the inclusivity of our Nation's institutions in service of superficial neutrality that promotes indifference to inequality and ignores the reality of race."
What It Means: Implications For Higher Ed Admissions, And Beyond
The Court's decision, while definitive, leaves many questions unanswered and will undoubtedly spur litigation for years to come. For example, a university's consideration of how race affected an applicant's life is a necessarily fact specific inquiry and the contours of that inquiry – and how schools implement it – is surely going to be tested. The Court also conspicuously failed to mention the usual race-neutral alternatives that have been discussed over the years (such as socioeconomic factors) and whether the consideration of such alternatives can be used to achieve the objective of attaining the educational benefits of a diverse student body. It is also unclear how the Court's opinion will affect race-based financial aid programs and scholarships, pipeline programs, mentoring and other retention strategies, and other initiatives intended to advance diversity, equity, and inclusion (DEI) in higher education – both those at the universities themselves and those sponsored or provided by foundations and other organizations.
The reach of SFFA outside the context of higher education is another important open question. The specific question before the Court was whether the at-issue, race-conscious admissions programs violated the Equal Protection Clause and the majority seemed reluctant to go beyond that question. For example, the Court specifically excluded military academies from the decision, plainly stating that "[t]his opinion [] does not address the . . . issue in light of the potentially distinct interests that military academies may present." And yet, the majority opinion also reiterated that "ameliorating societal discrimination does not constitute a compelling interest that justifies race-based state action," citing to cases outside of the higher education context to support that point, such as voting rights and preferential government contracting programs. Justice Gorsuch's concurrence points out this decision's consistency with Title VII considerations, stating, "[i]f this exposition of Title VI sounds familiar, it should. Just next door, in Title VII, Congress made it 'unlawful . . . for an employer . . . to discriminate against any individual . . . because of such individual's race, color, religion, sex, or national origin.'"11 This indicates that the framework set forth in SFFA – even if not directly applicable today - may be applied by the Court in subsequent cases in other contexts, as prior affirmative action decisions have been.
What to Expect
The reverberations from this ruling have not been fully realized. However, this ruling comes at a time when we have already begun seeing increased litigation and scrutiny from state Attorney Generals and Legislators. Almost immediately, organizations supportive of SFFA's challenges praised the decision and promised to "monitor the implementation of the U.S. Supreme Court ruling." SFFA president, Ed Blum, warned: "For those in leadership positions at public and private universities, you have an obligation to follow the letter and the spirit of the law." SFFA and its allied organizations will undoubtedly scrutinize colleges' and universities' continued consideration of race or ethnicity in admissions, as well as the facilitation of this by vendors who contract with Title VI schools. Schools and universities should begin to asses any race-based programs given the breadth of the Court's opinion.
This alert is the first of several client-and public-facing publications Steptoe will issue that analyze at-length the implications of the Court's decision in SFFA.
Footnotes
1. Several pages into the decision, the Court also explained in a footnote that "discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI" of the Civil Rights Act of 1964. Justice Gorsuch's concurring opinion delved more thoroughly into the Title VI analysis.
2. Grutter v. Bollinger, 539 U.S. 306 (2003)
3. Justices Thomas, Gorsuch, and Kavanaugh issued concurring opinions in addition to joining the majority. Justices Sotomayor and Jackson each dissented (the latter only with respect to the UNC case, as she recused herself from the Harvard case), joined by Justice Kagan.
4. Thomas, J Concurrence at pg. 58
5. Roberts, CJ Majority at pg. 23
6. Id. at 27
7. Id at 21.
8. Id. at 39
9. Jackson, J Dissent at pg. 25
10. Id. at 26
11. Gorsuch, J Concurrence at pg. 4
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