What could the end of Affirmative Action in college
admissions mean for nonprofits?
The Supreme Court recently ruled 6 – 3 that colleges cannot
consider race as a factor when reviewing applications in
Students for Fair Admissions, Inc. v. President and Fellows of
Harvard College and Students for Fair Admissions, Inc. v.
University of North Carolina, No. 20-1199, 600 U.S. (2023)
("SFFA"). Under the history of rulings issued by
the Supreme Court going back to 1978, higher education institutions
were permitted to include race as a "plus" factor in
admissions processes. The majority opinion reverses this approach
to reviewing college applications.
The application review processes of Harvard and the University of
North Carolina ("UNC") both included the consideration of
race when admitting students. At the end of the application review
process of Harvard, race was the determinative tipping point for
accepting a significant percentage of BIPOC students. Similarly,
the UNC admissions process included the option for the application
reviewer to assign a substantial plus depending on the race of the
prospective student. Both approaches were crafted to comply with
previous Supreme Court rulings on affirmative action.
Students for Fair Admissions, a nonprofit organization, filed
lawsuits against Harvard and UNC alleging that the consideration of
race in the admissions programs violate the Equal Protection Clause
of the Fourteenth Amendment and Title VI of the Civil Rights Act of
1964. The Equal Protection Clause provides that, "[n]o state
shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any state
deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the
equal protection of the laws."1 The Supreme Court
analyzes claims under the Equal Protection Clause based on whether
they eliminate racial discrimination, and any exception is examined
under the "strict scrutiny" standard.2 Under
this standard, the Court considers whether race is used to
"further compelling governmental interest" and, if so,
whether race is "necessary" to achieve such
interest.3
Chief Justice Roberts authored the majority opinion reaching the
conclusion that both admissions programs violate the Equal
Protection Clause of the Fourteenth Amendment.4 The
majority opinion sets forth three reasons why the Equal Protection
Clause was violated: (i) the programs failed to operate in a manner
that could be subjected to meaningful judicial review to measure
the goals of the processes and the means by which they were
employed;5 (ii) the systems did not prevent race being
used as a negative factor, which results in stereotyping applicants
in direct contrast to the "core purpose" of the Equal
Protection Clause"6; and, (iii) the processes
lacked a "logical end point" as required by a previous
Supreme Court ruling holding race-based approaches in admissions
programs must have a termination point.7
In conclusion, the majority opinion states that, "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 through discrimination, inspiration, or
otherwise."8 However, it provides that the essay
should discuss the particular applicant's experience and their
unique ability to contribute to the institution. The opinion
further explains that the applicant must be evaluated on their
experience as an individual and not based on their race. This one
paragraph seems to indicate that race still can be part of
admissions decisions; it just cannot be a check the box item.
Importantly, Justice Gorsuch wrote a concurring opinion, joined by
Chief Justice Thomas, to emphasize that Title VI of the Civil
Rights Act of 1964 does not tolerate the practice of admitting or
rejecting applicants based on race if the reviewer accepts federal
funds.
What does this mean for nonprofit
organizations?
Although the discussion of Title VI by Justice Gorsuch is not the
majority opinion, it is foreseeable that his discussion could lead
to claims against a nonprofit organization that accepts federal
funds and engages in considering race as part of a program. It is
also plausible that the majority opinion could spark claims against
a nonprofit under the Equal Protection Clause for race-conscious
programs.
Justice Gorsuch states that, "we can safely say that Title VI
forbids a recipient of federal funds from intentionally treating
one person worse than another similarly situated person on the
ground of race, color, or national origin."9 His
opinion explains that by Harvard and UNC awarding a positive to
applicants of a certain race, this naturally works as a penalty
against other races when candidates are competing for a limited
number of spots. On the flipside, the dissenting opinion of Justice
Sotomayor, joined by Justices Kagan and Jackson, contends that the
guarantee of the Equal Protection Clause can be enforced through
race-conscious means, particularly in access to education, and that
Justice Gorsuch's depiction of Title VI is contrary to
precedent.
As of today, the question remains whether considering race as part
of a grant-making process or acceptance into a nonprofit program
should be subject to the SFFA analysis. The majority opinion is
limited to admissions policies in higher education institutions,
but many nonprofits may re-examine applications that consider race
in selecting recipients of funding. This reassessment may also
impact internal evaluations of candidates, diversity, equity, and
inclusion endeavors, and ESG programs. Instead of including an
applicant's race as a plus factor in a funding review process,
nonprofits may choose to require essays that encourage applicants
to discuss systemic biases or discrimination they have faced as a
way to ensure diversity.
Nonprofits have long been at the forefront of race-conscious
efforts to lower societal barriers and encourage inclusive
environments, but it remains to be seen if SFFA will change how
these programs are implemented. Many nonprofit organizations have
signed a joint statement in response to the Supreme Court's
ruling pledging that they, "will remain steadfast in our
collective mission to create a more equitable nation within the
bounds of the law."10 Although it is uncertain how
operations will change for nonprofit organizations in the wake of
SFFA, there is sure to be some shift within many nonprofits as they
scrutinize the reasoning in the majority opinion.
Footnotes
1. U.S. Const. amend. XIV, § 1.
2. SFFA, 600 U.S. , at *14-15 (2023).
3. Id., 600 U.S. , at *15.
4. Although not discussed in the body of the majority opinion, the
footnotes provide that a violation of the Equal Protection Clause
byan institution that accepts federal funds is also a violation of
the Title VI of the Civil Rights Act of 1964.
5. Id., 600 U.S. , at *23.
6. Id., 600 U.S. , at *24-30.
7. Id., 600 U.S. , at *30-34 (citing Grutter v.
Bollinger, 539 U.S. 306 (2003)).
8. Id., 600 U.S. , at *39.
9. Id., 600 U.S. , at *3 (Gorsuch, J., concurring).
10. Ford Foundation Statement.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.