U.S. Supreme Court Effectively Ends Affirmative Action in College Admissions

July 1, 2023 Advisory

In a long-awaited decision, the Supreme Court of the United States ruled on June 29, 2023, in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College that the use of race as a factor in admissions by Harvard College (Harvard) and the University of North Carolina (UNC) violates the Equal Protection Clause of the Fourteenth Amendment. This decision effectively overturns decades of Supreme Court precedent and ends the use of affirmative action in the admissions process at public institutions and private colleges and universities receiving federal funding.

In previous decisions over the past several decades, the Supreme Court had found that student body diversity is a compelling state interest that can justify the use of race in university admissions, subject to certain limitations. Relying on this precedent, Harvard and UNC developed multi-step admissions processes that permitted consideration of the applicant’s race at certain points, as one of many factors. In striking down these policies, which the Court’s six-justice majority opinion repeatedly characterized as “race-based,” the Court declared that under existing precedent, “University programs must comply with strict scrutiny, they may never use race as a stereotype or negative and – at some point – they must end.” The Court held that the Harvard and UNC admissions processes failed under all three of these criteria, and thus violated the Equal Protection Clause.

With respect to strict scrutiny, the Court found that the schools’ “commendable goals” such as training future leaders and promoting a robust marketplace of ideas were not “sufficiently coherent,” and that their interests relating to diversity, “though plainly worthy,” were “inescapably imponderable.” The Court asserted that it could not permit the schools to “separate students on the basis of race without an exceedingly persuasive justification that is measurable and concrete enough to permit judicial review,” and held that Harvard and UNC’s admissions programs did not meet that standard.

The Court further found that both schools “unavoidably employ race in a negative manner,” as both programs resulted in the admission of fewer Asian American students. In making this finding, the majority opinion asserted that “[c]ollege admissions are zero-sum,” and a “benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.” The Court similarly determined that both programs require stereotyping, stating that the “point of respondents’ admissions programs is that there is an inherent benefit in race qua race – in race for race’s sake.”

Lastly, in finding that the schools’ admissions programs lack a “logical end point,” the Court relied on the 2003 decision in Grutter v. Bollinger in which the Court stated: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” Although it has been only 20 years since Grutter was decided, and although in any case the Grutter court did not point to this timeframe as a hard deadline, the Court used the schools’ failure to assert that their consideration of race would no longer be necessary in five years as a basis for finding that they failed the third prong of the test.

The majority opinion left open a very narrow window for the consideration of race, noting 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.” Justice Sonia Sotomayor’s vehement dissent characterized this possibility as “an attempt to put lipstick on a pig,” stating that the “Court’s opinion circumscribes universities’ ability to consider race in any form by meticulously gutting respondents’ asserted diversity interests.” Her dissent further emphasized both schools’ “sordid legacies of racial exclusion,” and argued that the majority “is not interested in crafting a workable framework that promotes racial diversity on college campuses,” but instead “announces a requirement designed to ensure all race-conscious plans fail.” Three of the Court’s conservative jurists—Justices Neil Gorsuch, Brett Kavanaugh and Clarence Thomas—filed concurrences, while Justice Ketanji Brown Jackson submitted an additional dissent.

Many colleges and universities likely anticipated that the Supreme Court would curtail the use of race in admissions and have begun to review their policies and to plan adjustments. Now that the decision has been issued, institutions should carefully review the majority opinion as well as the various concurrences and dissents to evaluate what types of admissions processes may be employed going forward without running afoul of the Court’s articulated constitutional requirements. Institutions should also consider what they may wish to communicate to applicants, students, alumni, faculty, staff and other constituents regarding their commitment to providing high-quality education in light of the new restriction on their admissions policies. If you have any questions specific to your institution, please contact your regular Armstrong Teasdale lawyer or one of the authors listed below.

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