Overview
On Thursday, June 29, 2023, the United States Supreme Court issued an opinion in two cases, Students for Fair Admissions, Inc. v. University of North Carolina and Students for Fair Admissions, Inc. v. Harvard College. The Court held that the affirmative action admission policies used by the University of North Carolina (UNC) and Harvard College (Harvard) are unlawful under the Equal Protection Clause of the Fourteenth Amendment.[1]
Since the 1960’s, colleges and universities used affirmative action policies that gave a “plus” in admissions to students who are racial minorities, so long as the institutions did not employ a race-based quota system. With the Court’s recent ruling, colleges and universities are prohibited from using a student’s race alone as a positive factor in admissions. While this decision limits the ways that institutions of higher education (IHEs) may consider race in admissions, universities can still consider “an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” However, any consideration of race must be tied to the individual student’s “unique ability to contribute to the university.”
History of Affirmative Action
In 1954, the Court issued a landmark decision in Brown v. Board of Education that struck down the “separate but equal” strategy that many states had been using in college admissions.[2] The Court determined that school segregation violated the Equal Protection Clause of the Fourteenth Amendment.
Several years after Brown, IHEs adopted affirmative action admissions policies that encouraged the admission of minorities. In 1978, the Court heard its first case challenging affirmative action in college admissions, Regents of University of California v. Bakke.[3] The Plaintiff was a white male applicant who had been denied admission to the University of California’s medical school. At the time, the University of California employed an affirmative action policy that had a separate “special admissions program” for students who reported being disadvantaged economically and/or educationally or a member of a minority group. Students evaluated through this special admissions program were not required to meet the 2.5 minimum GPA requirement set for all other applicants. The Court determined that a school cannot employ a race-based quota system in admissions but found that race can be one of many factors used to evaluate a student, and that race or an ethnic background may be a “plus” in the admissions process.
Since the Bakke decision, the Court has consistently upheld affirmative action admissions policies, so long as the policies are narrowly tailored and do not employ a quota system or save seats for students based on race. The Court recognized that “student body diversity is a compelling state interest that can justify using race in university admissions,” while also stating that “all race-conscious admissions programs [must] have a termination point.”[4]
The Court’s Decision
In its opinion in the UNC and Harvard cases, the Court again looked to the Equal Protection Clause. Added to the Constitution through the Fourteenth Amendment in 1868, it provides that states cannot deprive people of “equal protection of the laws.”[5] Through the precedent of prior cases, courts have held that “the equal protection clause requires equality of treatment before the law for all persons without regard to race or color.”[6] While distinctions based on race are occasionally permitted, they must survive strict scrutiny, such that the race-based distinction or preference is narrowly tailored to meet a compelling interest.[7]
UNC, a public institution, is a state actor and is directly subject to the Equal Protection Clause. Harvard, a private entity, is not subject to the equal protection clause. However, as a recipient of federal funds, Harvard is subject to Title VI of the Civil Rights Act of 1964. Supreme Court precedent holds that a violation of the Equal Protection Clause is also a violation of Title VI. Accordingly, Harvard’s admissions policy is subject to the Equal Protection Clause.
In its analysis in Students for Fair Admissions, the Court reiterated these criteria, stating that university admissions programs “must comply with strict scrutiny, they may never use race as a stereotype or negative, and – at some point – they must end.” Upon reviewing the admissions policies of both UNC and Harvard, the Court determined that the admissions policies failed to satisfy these criteria and violated the Equal Protection Clause.
The Court stated that the goals of both institution’s admissions policies were “commendable” but “elusive,” that the means to achieve them were mismatched, and that the admissions policies ultimately failed to provide persuasive justification for the separation or categorization of students based on race. The goals of these policies included training future leaders, promoting the robust exchange of ideas, preparing graduates for an increasingly pluralistic society, and better educating students through diversity. To achieve these goals, both UNC and Harvard measured the racial composition of their classes using six racial categories. These “overbroad” and “undefined” categories did not achieve the stated objectives of the admissions policies because they focused on underrepresentation of minority groups.
The Court also determined that the race-based admissions systems of both UNC and Harvard used race as a “negative” and operated as a “stereotype.” First, the Court found that Harvard’s consideration of race in its admissions policies had led to a decrease in the number of Asian-Americans and white students admitted. This finding violated Court precedent in affirmative action cases, which prohibits an individual’s race from being used against them in the admissions process. Second, the Court held that the admissions policies impermissibly stereotyped on the basis of race. The policies assumed that “students of a particular race, because of their race, think alike” and failed to judge applicants on their individual merit and essential qualities.
Finally, the Court determined that the admissions policies lacked a “logical end point.” UNC and Harvard argued that their race-based admissions programs would end when, absent affirmative action policies, there is “meaningful representation and meaningful diversity on college campuses.” For Harvard, this meant comparing the racial breakdown for each class and adjusting accordingly, and UNC wanted to obtain proportional representation in its undergraduate student body. The Court rejected this argument, stating that these approaches constituted “outright racial balancing,” which would never eliminate race as a criterion for admission.
The Court concluded that the admissions policies of Harvard and UNC “cannot be reconciled with the guarantees of the Equal Protection Clause,” overturning the lower courts’ decisions and decades of precedent.
Chief Justice Roberts wrote the majority opinion and was joined by Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. Justice Sotomayor wrote the Harvard dissent and was joined by Justice Kagan. Justice Jackson did not join the Harvard dissent as she recused herself from that case due to her history of service on a governing board at Harvard. Justice Jackson authored the dissent in the UNC case and was joined by Justices Sotomayor and Kagan.
Conclusion
Colleges and universities should audit their admissions policies to ensure compliance with Students for Fair Admissions. Additionally, these cases may have implications in employment policies under Title VII of the Civil Rights Act of 1964. If you have any questions about this decision or would like assistance in reviewing your policies, please contact Grace Pennerat or Rachel Pender at Poyner Spruill LLP.
[1] The Court noted that its opinion excluded U.S. military academies from this decision.
[2] Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).
[3] Regents of University of California v. Bakke, 438 U.S. 265 (1978).
[4] Grutter v. Bollinger, 539 U.S. 306 (2003).
[5] U.S. Const. amend. XIV, § 1.
[6] Browder v. Gayle, 142 F. Supp. 707 (MD Ala. 1956).
[7] Korematsu v. United States, 323 U.S. 214 (1944).
