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June 30, 2023

Supreme Court’s Affirmative Action Decision Requires New Approaches to Achieving Diversity In Higher Education

Advisory

On June 29, the Supreme Court issued landmark decisions in a pair of cases, Students for Fair Admissions Inc. v. President & Fellows of Harvard Coll., 599 U.S. ___ (2023) and Students for Fair Admissions Inc. v. Univ. of N. Carolina, 599 U.S. ___ (2023) that will transform the use of race in admissions to universities — and will complicate the use of race in programs on college campuses (and potentially other areas of American life). This Advisory explains the background of the decisions and also provides an early analysis of how universities that hope to achieve the benefits of diversity might go about complying with the decision without sacrificing those goals.

Legal Background

Over the past half century, the Supreme Court has addressed the issue of affirmative action in higher education through a series of landmark cases regarding consideration of race in admissions policies. Throughout these cases, the Court has grappled with the delicate balance between promoting diversity and upholding the constitutional principle of equal protection. The Court has stressed the importance of narrowly tailored policies that consider race as only one aspect of a holistic admissions process. It has placed a significant burden on universities to justify consideration of race and has required them to continually review and refine their policies to ensure they remain necessary and appropriate.

In 1978, the Supreme Court made its first major foray into this area in the landmark case Regents of University of California v. Bakke. The Court’s decision in Bakke was fractured, with no majority opinion. The Court ruled that strict racial quotas were unconstitutional, but Justice Lewis F. Powell, in a concurring opinion that is deemed controlling, allowed for the consideration of race as a factor in admissions to achieve diversity. Notably, Justice Powell looked to Harvard’s admissions policies as a model of an institution that appropriately used race as a factor in admissions. The lack of a clear majority opinion, and the firmly held positions on both sides of the debate, left many questions unresolved and led to subsequent litigation on the issue.

In 2003, the Court revisited the issue of race in university admissions in a pair of cases involving the University of Michigan: Grutter v. Bollinger (involving law-school admissions) and Gratz v. Bollinger (involving undergraduate admissions). In Grutter, the Court affirmed that diversity in higher education was a compelling state interest, justifying the consideration of race as one factor among many in admissions decisions. Foreshadowing the Court’s most recent ruling, Gratz held that a point-based system that automatically awarded points based on race was unconstitutional. Grutter also stated that it expected that “25 years from now” (i.e., by 2028) “the use of racial preferences will no longer be necessary.”

In 2013, the Court dealt with the issue once again in Fisher v. University of Texas at Austin. In Fisher, the Court reaffirmed the importance of strict scrutiny in reviewing affirmative action policies. It held that universities must demonstrate that their use of race as a factor in admissions is narrowly tailored to achieve diversity and must also show that race-neutral alternatives are insufficient. Fisher held that race-conscious admissions must be a last resort. Then, in 2016, Fisher returned after proceedings on remand before a short-handed Supreme Court (the vacancy left by Justice Scalia’s death remained, and Justice Kagan had recused herself because she’d been involved in the case while Solicitor General). A bare majority of the Court held by a 4-3 vote that the University of Texas’s undergraduate admissions system was narrowly tailored to serve the compelling interest in student body diversity.

Background on the Cases Before the Court

Students for Fair Admissions Inc. (SFFA) v. Presidents and Fellows of Harvard College and Students for Fair Admissions Inc. v. University of North Carolina (UNC) are both direct challenges to the use of race as a factor in admissions at Harvard (a private university) and the University of North Carolina at Chapel Hill (a public university). In both cases, SFFA sought an absolute prohibition on consideration of race in admissions and alleged that, even under current law, the respective universities were not in compliance.

The Harvard case was the first challenge to a race-conscious admissions policy involving a private college to reach the Supreme Court. SFFA argued that Harvard’s consideration of race as one of many factors in admissions violated Title VI of the Civil Rights Act of 1964 which Harvard was required to comply with as a recipient of federal funds. SFFA argued that Harvard’s admissions process penalized Asian applicants for supposedly lacking as much leadership, confidence, likability, or kindness as white applicants. Additionally, SFFA alleged that Harvard engaged in admitted racial balancing and ignored race-neutral alternatives. Harvard therefore failed to use race as a last resort in admissions, as required by controlling precedent.

As a public university, UNC is bound by the Fourteenth Amendment’s Equal Protection Clause. SFFA argued that UNC impermissibly rejected any race-neutral alternative that would change the composition of its student body, even if those alternatives would improve overall student body diversity. SFFA argued that this justification failed because universities have no legitimate interest in maintaining a precise racial balance and no compelling interest in preventing minor dips in average SAT scores that justified the use of race-conscious policies.

The Holdings

The Supreme Court’s holdings have significant implications for consideration of race in higher education admissions. The Court, in both cases, emphasized that the explicit use of race as an independent factor in admissions is ordinarily prohibited, unless necessary to achieve a compelling state objective. A six-justice majority concluded that the Harvard and UNC admission policies did not satisfy that strict standard.

Chief Justice John Roberts, writing for the majority, acknowledged the Court’s history of grappling with the issue of race in affirmative action. Students for Fair Admissions Inc. v. President and Fellows of Harvard College, No. 20-1199 (June 29, 2023), Slip Op. 16-22. He highlighted that, while the Court has recognized the compelling interest of student body diversity, the Court has permitted race-based admissions only within narrow parameters. The Court has insisted that admissions programs (1) must comply with strict scrutiny, (2) may never use race as a stereotype or negative, and (3) must end at some point. Slip. Op. 16-22. The majority did not explicitly overrule Grutter. Nor did it overrule Fisher’s approval of Texas’s affirmative action program, which it described as “sui generis,” emphasizing that the program was aimed at establishing a “critical mass” of minority students — an interest neither Harvard nor UNC invoked.

The Court held that respondents’ admissions policies “fail[ed] each” of the three criteria outlined above. That is, they did not meet strict scrutiny, impermissibly used race as a negative factor, engaged in impermissible racial stereotyping, and did not have any defined endpoints. The policies therefore were invalid under the Equal Protection Clause of the Fourteenth Amendment. Slip. Op. 22. The majority clarified in a footnote that Title VI and the Equal Protection Clause are coextensive under the Court’s precedent, meaning the analysis was identical for both Harvard as a private university and UNC as a public institution. Slip Op. 6 n.2.

As to the first criterion, the requirement to meet strict scrutiny, the Court held that the universities’ policies failed at this threshold step. None of the proffered compelling interests offered by the Universities were capable of serving as compelling interests justifying race-conscious admissions policies. Harvard submitted (1) “training future leaders in the public and private sectors”; (2) “preparing graduates ‘to adapt to an increasingly pluralistic society’”; (3) “better educating its students through diversity”; and (4) “producing new knowledge stemming from diverse outlooks” as compelling interests. UNC advanced the following: (1) “promoting the robust exchange of ideas”; (2) “broadening and refining understanding”; (3) “fostering innovation and problem-solving”; (4) “preparing engaged and productive citizens and leaders”; and (5) “enhancing appreciation, respect, and empathy, cross-racial understanding, and breaking down stereotypes.” Slip Op. 23. These proffered interests, the Court held, “[a]lthough commendable goals,” “are not sufficiently coherent for purposes of strict scrutiny” because they are not susceptible to any kind of specific measurement. Determining when, exactly, these interests are sufficiently met so as to no longer require the use of race in admissions is not possible.

The Court contrasted these proffered interests to three interests that the Court has found capable of serving as compelling interests that are much less “elusive” to measure: (1) “whether temporary racial segregation of inmates will prevent harm to those in the prison”; (2) “whether a race-based benefit makes members of the discriminated class ‘whole for [the] injuries [they] suffered’”; (3) “whether any race-based remedial action produces a distribution of students comparable to what it would have been in the absence of such constitutional violations.” Slip Op. 22-24. In contrast to these goals, the interests offered by Harvard and UNC, “though plainly worthy, are inescapably imponderable.” Slip Op. 24. The Court further held that the programs failed strict scrutiny because Harvard and UNC “fail[ed] to articulate a meaningful connection between the means they employed and the goals they pursue.” Slip Op. 24-26.

As to the second required criterion, that an admissions policy not use race as a negative factor and not engage in race-stereotyping, the Court held that Harvard’s and UNC’s admissions policies also failed. Each, the Court held, failed to comply with the “twin commands of the Equal Protection Clause that race may never be used as a ‘negative’ and that it may not operate as a stereotype.” Slip Op. 27-30. Implementation of Harvard’s admissions policy has come at the expense of white and Asian applicants, while race-conscious admissions generally erase individuality by perpetuating the idea of monolithic racial groups.

As to the third required criterion, that race-conscious programs have a defined end point, Harvard’s and UNC’s admissions policies also did not meet the constitutional standard. Slip Op. 30; see Slip Op. 30-34. There was “no reason to believe” that the programs would end “any time soon.” Slip Op. 34. The universities’ ongoing review of their programs failed to satisfy this requirement.

As part of its response to the dissenting opinion, the Court explained that its decisions place significant limitations on the use of programs to achieve racial diversity “indirectly.” Slip Op. 39-40. According to the Court:

[A]s all parties agree, 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…. But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today. (A dissenting opinion is generally not the best source of legal advice on how to comply with the majority opinion.) “[W]hat cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows,” and the prohibition against racial discrimination is “levelled at the thing, not the name.” Cummings v. Missouri, 4 Wall. 277, 325 (1867). 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.

Slip Op. 39-40. Thus, even while the Court’s decision bars virtually any explicit use of race as an independent factor in admissions policies, the decision recognizes that a person’s race nonetheless informs the person’s “experiences as an individual” and that such “individual” considerations are still permissible factors that admission’s officers may consider in assessing candidates for admission.

Concurrences and Dissents in SFFA v. Harvard and SFFA v. North Carolina

Justice Clarence Thomas concurred with the majority opinion, while Justices Neil Gorsuch, Brett Kavanaugh, Sonia Sotomayor, and Ketanji Brown Jackson offered their own separate opinions.

In his concurrence, Justice Thomas explained that “[b]ecause the Court today applies genuine strict scrutiny to the race-conscious admissions” he joined the majority opinion in full. He concurred “separately to offer an originalist defense of the colorblind Constitution; to explain further the flaws of the Court’s Grutter jurisprudence; to clarify that all forms of discrimination based on race — including so-called affirmative action — are prohibited under the Constitution; and to emphasize the pernicious effects of all such discrimination.”

Justice Gorusch wrote separately to further explain why the unqualified language of Title VI of the Civil Rights Act of 1964 prohibits race-conscious admissions even though it may not be precisely coextensive with the Equal Protection Clause of the Fourteenth Amendment. Justice Gorsuch explained that, in his view, the language of Title VI prohibits racial considerations in university admissions.

Justice Kavanaugh’s concurrence further explained why the Court’s decision is consistent with and follows from the Court’s equal protection precedents, including the Court’s precedents on race-based affirmative action in higher education. He also wrote to emphasize that governments and universities “still ‘can, of course, act to undo the effects of past discrimination in many permissible ways that do not involve classification by race,’” quoting Justice Scalia’s concurrence in Richmond v. J. A. Croson Co., 488 U. S. 469, 526 (1989) (Scalia, J., concurring in judgment).

In her dissenting opinion, Justice Sotomayor explained why in her view the Court’s decision “subvert[ed] the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society.” In her view, “limited use of race has helped equalize educational opportunities for all students of every race and background and has improved racial diversity on college campuses.” The majority opinion “stands in the way and rolls back decades of precedent and momentous progress.”

Justice Jackson’s dissenting opinion emphasized the “[g]ulf sized” gap between the races in terms of “health, wealth, and well-being” created by race discrimination in the past. She wrote that the majority opinion “blinks” that “history and reality in ways too numerous to count.”

Guidance for Universities Going Forward

The Supreme Court’s holding in the Harvard and North Carolina cases appears emphatic and absolute: Universities may not ever rely on race as an independent factor in admissions. As the Court’s opinion explains, the evil in race-conscious admissions is that it elevates the color of an individual’s skin over the “touchstone[s] of an individual’s identity” “challenges bested, skills built, [and] lessons learned.” Slip Op. 40. But the opinion leaves open significant pathways for educational institutions to nonetheless achieve diversity goals without explicit reliance on race.

Thus, consistent with the Court’s opinion, universities may still take into account relevant factors that contribute to student body diversity by looking to numerous factors that correspond to the compelling interests the Court articulated as furnishing permissible criteria for selecting individuals for admission to educational programs. Permissible methods for achieving diversity include:

  1. Consideration of socioeconomic status in admissions: Universities can consider an applicant’s socioeconomic background as a way to address economic disadvantages that are often correlated with racial disparities. Students from economically disadvantaged backgrounds often face unique challenges and can contribute to a diverse campus environment.
  2. Consideration of first-generation status in admissions: Universities may take into account whether an applicant is a first-generation college student. This factor recognizes the importance of creating opportunities for individuals from families without a history of higher education, which disproportionately includes underrepresented racial and ethnic groups.
  3. Consideration of geographic diversity in admissions: Universities can consider geographic diversity as a means to foster a diverse campus environment. This may include giving preference to applicants from underrepresented areas, such as rural or urban centers, where certain racial and ethnic groups may be disproportionately located. It may also include international applicants.
  4. Consideration of personal experiences informed by racial background: Although universities cannot directly consider an applicant’s race, as the Court noted in its opinion, they can evaluate personal experiences that are influenced by racial background. This allows universities to recognize the diverse perspectives and experiences that applicants from different racial and ethnic backgrounds bring to the campus community. As the Court articulated, the line is whether “the student” is “treated based on his or her experiences as an individual” even if those experiences are informed by race. Slip Op. 40.
  5. Elimination of certain admissions preferences: Universities can review and revise their admissions preferences to ensure they do not inadvertently perpetuate or reinforce racial disparities. One such program that might be revisited is the use of legacy admissions. By eliminating preferences that disproportionately advantage certain racial or ethnic groups, universities can create a more equitable admissions process.
  6. Admissions bonuses for service commitments to historically underrepresented communities: Universities may provide admissions bonuses or incentives for applicants who have demonstrated a commitment to serving historically underrepresented communities. This recognizes the value of individuals who have actively worked to address social and racial disparities.
  7. Enhancement of outreach to historically underrepresented communities: Universities can proactively engage with and reach out to historically underrepresented communities to encourage diverse applicants to apply. By increasing outreach efforts and providing support and resources, universities can attract a broader pool of applicants. These efforts could include year-round recruiting and outreach campaigns to identify and contact talented students, including minority students, from across the country; attending recruiting fairs in areas with substantial minority populations; hosting workshops for high-school counselors; maintaining offices in certain areas with diverse populations to recruit local high school students; coordinating campus visits for high school students; and enlisting current students and others to contact admitted minority students, among others, encouraging them to enroll; and hosting events for admitted students.
  8. Use of “Top Ten Percent” analogues: Some states have implemented policies similar to the “Top Ten Percent” plan, where students who graduate in the top percentage of their high school class are guaranteed admission to public universities. These policies indirectly promote diversity by considering the varied demographics within different high schools, which may have a mix of racial and ethnic backgrounds.
  9. Admissions bonuses for certain extracurricular activities and achievements: Universities can consider an applicant's involvement in extracurricular activities and their achievements in areas such as sports, arts, community service, leadership roles, or other talents. This approach recognizes that diversity encompasses a wide range of skills, interests, and experiences beyond racial or ethnic backgrounds.
  10. Admissions bonuses for students that bring academic and intellectual diversity: Universities can prioritize academic and intellectual diversity by considering applicants with diverse academic interests, disciplines, and intellectual pursuits. This approach promotes a vibrant learning environment where students from different academic backgrounds can contribute unique perspectives and enhance the educational experience for all.

By focusing on these factors, universities can still work towards achieving diversity without explicitly considering an applicant’s race. This approach allows universities to maintain diversity as a goal while complying with the Supreme Court’s prohibition on the explicit use of race in admissions.

Arnold & Porter attorneys are available to advise universities and other institutions of higher education in implementing programs and policies that aim to achieve their diversity missions while complying with the Supreme Court’s holdings in the Harvard and North Carolina cases.

* Disclosure: Arnold & Porter represented groups that filed briefs in these cases supporting the constitutionality of Harvard and UNC’s admissions policies.

© Arnold & Porter Kaye Scholer LLP 2023 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.