Alert 03.15.23
Universities Prepare for End of Affirmative Action
Schools are developing strategies now for maintaining campus diversity if the Supreme Court bars consideration of race in admissions.
Alert
06.30.23
On June 29, 2023, the U.S. Supreme Court ruled in Students for Fair Admissions v. Harvard and Students for Fair Admission v. University of North Carolina (the “SFFA Cases”) that Harvard and UNC’s admission programs violate the Equal Protection Clause of the Fourteenth Amendment. As to Harvard, the Court stated that discrimination that violates the Equal Protection Clause committed by an institution that accepts federal funds also violates Title VI of the Civil Rights Act. Thus, the Court evaluated Harvard’s admissions program under the Equal Protection Clause standard. Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. __, 14, fn. 2 (2023).
Although the Court did not expressly overrule its prior holding in Grutter v. Bollinger, 539 US 306 (2003) that student body diversity was a compelling interest sufficient to justify race-conscious admissions, the Court found that Harvard and UNC’s programs were unconstitutional because their means of accomplishing such diversity:
Students for Fair Admissions, Inc., 600 U.S. __, 47.
Lacking focused and measurable objectives: The Court determined that the universities’ alleged compelling interests—including training future leaders, acquiring new knowledge based on diverse outlooks, promoting a robust marketplace of ideas, and preparing engaged and productive citizens—could not be meaningfully reviewed under strict scrutiny because they were not sufficiently measurable or concrete. Id., 600 U.S. ___, 31, 32.
The Court further held that both schools’ programs failed to provide a meaningful connection between the means used by the admissions’ programs and the alleged goals, rejecting the use of “overbroad” and “arbitrary” racial categories as actually capable of achieving those goals. Id. at 25.
Consideration of race in a “negative” manner: The Court rejected the universities’ argument that giving a preference to some applicants was not a “negative” to others who did not receive the preference, reasoning that college admissions are “zero sum” and that a benefit provided to some is necessarily a detriment to others. Id. at 35. The Court emphasized that Harvard acknowledged that race was the determinative factor for some if not many admitted students, which meant that applicants belonging to some racial groups were more likely to be admitted over others. Id. at 36.
Racial stereotyping: The Court took issue with the universities’ implicit stance that racial diversity is inherently beneficial, concluding that this necessitated the use of racial stereotypes and rested on the “offensive and demeaning assumption that [students] of a particular race, because of their race, think alike ... .” See Id. at 29.
Lacking a “logical end point”: Relying heavily on the language in Grutter that race-conscious admissions programs should eventually be unnecessary—and thus must have a “logical end point”—the Court rejected the universities’ proffered endpoints, neither of which provided a date certain, and, alternatively, rejected their argument that frequent reflection on the necessity of such programs obviates the need for one. Id. at 38-41.
What Happens Next?
Under the Court’s decision, race may no longer be considered for race’s sake. However, the Court noted that “nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, [be it through discrimination, inspiration, or otherwise] so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university.” Students for Fair Admissions, Inc. 600 U.S. ___, 48 (emphasis added).
Caution is warranted. The Court admonished that universities must “not simply establish through application essays or other means the regime we hold unlawful today” and specifically warned against reliance on the dissents for advice on how to comply with the majority. Id. at 39. Thus, while schools can consider the value of an applicant’s experience that is associated with race, they may not use essays as a proxy for race-conscious admission. As the Court explained: “A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race. [¶] Many universities have for too long done just the opposite.” Id. at 39-40.
Schools’ admissions offices should work closely with counsel to assess what changes to their admissions practices and policies may be required in light of this ruling. This will require a careful balancing of risk tolerance for litigation against the school’s goals for diversity and the effectiveness of various race-neutral alternatives. Shortly after the Court issued its opinion in the SFFA Cases, President Biden announced that the Department of Education will convene a National Summit on Educational Opportunity next month to share strategies and develop resources for postsecondary educational institutions and stakeholders navigating this new terrain. The Department of Education also plans to produce a report to this effect by September 2023.
Related Articles: Universities Prepare for End of Affirmative Action (March 15, 2023)