By holding that emotional distress damages are not recoverable under certain antidiscrimination statutes, including Title IX, the Supreme Court has limited the liability of schools facing federal discrimination claims.
In October 2022, the Supreme Court heard argument in two cases challenging the use of race in college admissions: Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 211 L. Ed. 2d 604, 142 S. Ct. 895 (2022), and Students for Fair Admissions, Inc. v. Univ. of N. Carolina, 142 S. Ct. 896 (2022) (SFA Cases). Based on the Justices’ questions, many observers believe that the Court will overturn prior precedent and hold that schools may no longer consider race in college admissions, even as part of a holistic review. A decision in the SFA Cases is expected to be issued in June 2023.
More than 40 years ago, in Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978), the Supreme Court held that institutions of higher education have a compelling interest in attaining a diverse student body and therefore could consider race in admissions, provided such consideration was narrowly tailored. This holding was reaffirmed in both Grutter v. Bollinger, 539 U.S. 306 (2003), and Fisher v. University of Texas at Austin, 579 U.S. 365 (2016).
However, the current composition of the Court differs markedly from the Fisher Court on the issue of racial preferences, and the Court’s recent decisions demonstrate a willingness to disregard stare decisis and overturn precedent. See, e.g., Dobbs v. Jackson Women’s Health Org., 142 S. Ct 2228 (2022). This, along with the questioning during oral argument in the SFA Cases, has led many observers to predict that the Court will prohibit institutions of higher education from considering race as a factor in admissions.
In anticipation of the Court’s ruling, many colleges and universities are taking steps now to ensure they can implement any necessary changes for the 2023 – 2024 admissions cycle. In February 2023, the American Association of Collegiate Registrars and Admissions Officers (AACRAO), in collaboration with College Board, issued guidance to help schools prepare for a decision in the SFA Cases that changes the current law governing the use of race in admissions. Among other things, AACRAO recommends that schools:
Additionally, schools are considering adding or strengthening race-neutral strategies for maintaining diverse student bodies if the Court bars consideration of race in admissions, such as:
Various studies analyze the impact of these strategies, many of which were developed in states such as California and Michigan after the adoption of state laws that banned race-conscious admissions policies. Some resources schools may find helpful include:
In addition, both the University of California and University of Michigan submitted amicus briefs in the SFA Cases in support of affirmative action, arguing that race-neutral alternatives are insufficient to achieve their desired diversity goals. See Stephanie Saul, “Affirmative Action Was Banned at Two Top Universities. They Say They Need It.,” New York Times (Oct. 31, 2022) (reporting on the SFA Cases, highlighting the amicus briefs from the University of Michigan and the University of California and the post-ban diversity efforts at both universities); Brief for Amici Curiae, The President and Chancellors of the University of California, SFA Cases at 9-20 (arguing in favor of affirmative action on behalf of the University of California and discussing the impact of the university’s race-neutral policies); Brief for Amicus Curiae, The University of Michigan, SFA Cases at 11-28 (arguing in favor of affirmative action on behalf of the University of Michigan and discussing the impact of the university’s race-neutral policies).
As these sources demonstrate, reforming a school’s admissions process is a complex endeavor and there are no easy solutions for schools committed to maintaining racial diversity on campus. The strong possibility that the Court will bar the use of race in admissions makes it all the more imperative that these institutions analyze how such a ruling would impact DEI and make plans to blunt any negative effects.