U.S. Supreme Court rejects Race-Conscious College Admissions Programs

On June 29, 2023, in the highly anticipated cases Students for Fair Admissions v. President & Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina, the U.S. Supreme Court held that the race-conscious admissions programs of Harvard University and the University of North Carolina (UNC) violate the Equal Protection Clause of the U.S. Constitution. In the majority opinion, written by Chief Justice John Roberts, the Court held that while race-conscious decisions could theoretically be permissible under a strict scrutiny analysis in limited circumstances, the Harvard and UNC admissions programs did not survive strict scrutiny and were unlawful.  

In its analysis, the Court addressed (but did not explicitly overturn) its earlier decision in the 2003 case Grutter v. Bollinger, which held that the goal of student body diversity was a compelling interest that could justify the consideration of race in university admissions, provided that (1) admission policies did not devolve into “illegitimate stereotyping” such as a belief that minority students always or consistently express a particular minority viewpoint on any issue; (2) race was used as a “plus” factor only and did not unduly harm non-minority applicants; and (3) the policies had a logical end-point after which the consideration of race would no longer be required. 

While not explicitly overruling Grutter’s holding that “diversity” can be a compelling interest justifying race-conscious decision-making, the Court held that the Harvard and UNC policies violated each of the three restrictions on the use of race in decision-making. The Court reasoned that by employing admissions policies in which race was a critical factor, the universities’ “programs tolerate the very thing that Grutter foreswore: stereotyping.” The Court also noted that by definition, college admissions are “zero sum,” so that a “benefit provided to some applicants but not others necessarily advantages the former at the expense of the latter.” Further, the Court found that the Universities’ policies lacked a “logical end-point.” Significantly, the Court expressly rejected the universities’ suggestion that a logical end-point would be reached “once meaningful representation and diversity are achieved on college campuses,” describing this rationale as “patently unconstitutional outright racial balancing.” 

The Court allowed the possibility that higher education institutions may consider race in the context of an applicant’s discussion of how race specifically affected the individual applicant’s life. However, as the Court made clear, a university may only consider how an applicant’s discussion of their race is concretely tied to a “quality of character or unique ability that the particular applicant can contribute to the university.” 

In a scathing dissent, joined by Justices Elena Kagan and Ketanji Brown Jackson, Justice Sonia Sotomayor wrote, “The six unelected members of today’s majority upend the status quo based on their policy preferences about what race in America should be like, but is not, and their preferences for a veneer of colorblindness in a society where race has always mattered and continues to matter in fact and in law…The devastating impact of this decision cannot be overstated.” 

While the full implications of the decision are not yet clear, given the decision’s broad pronouncement that “[e]liminating racial discrimination means eliminating all of it,” all educational institutions and employers should review their current policies and practices that take a student or employee’s race into consideration. While the Supreme Court ruling does not categorically bar race-conscious decisions or the consideration of “diversity” as a factor in student admissions or employment decisions, the reasoning of the decision makes it difficult to predict what sort of “race-conscious” decision-making would survive strict scrutiny under the Court’s analysis. Accordingly, schools and employers must carefully review all race-conscious decision-making practices. 

We will continue to closely monitor developments in the application of the Supreme Court’s decision and provide updates as needed. If you have any questions about these cases or how to employ race-conscious measures in a legally compliant manner, please contact a Franczek attorney.