July 5, 2023Client Alert

Supreme Court Issues Consequential Ruling in Higher Education Affirmative Action Cases: What’s Next for Institutions of Higher Education and Employers’ DEI Initiatives?

On June 29, 2023, the United States Supreme Court struck down race-conscious admissions in higher education in Students for Fair Admissions, Inc. v. Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina (collectively, “SFFA”). A copy of the decision is available here. The Court found Harvard University’s (“Harvard”) and the University of North Carolina’s (“UNC”) race conscious admissions practices violated the Equal Protection Clause of the Fourteenth Amendment and also therefore violated Title VI of the Civil Rights Act of 1964. The ruling immediately and significantly impacts higher education institutions that use race as a factor in their admissions processes and decisions.

Legal Backdrop
The Equal Protection Clause forbids states from “deny[ing] to any person . . . the equal protection of the laws,” which the Court repeatedly has held prevents race discrimination by the government. Any exceptions to the Equal Protection Clause’s guarantee must survive the two-factor “strict scrutiny” test, which asks: (1) whether the racial classification is used to further a compelling governmental interest; and (2) whether the governmental interest is narrowly tailored, i.e., “necessary” to achieve that interest. Twenty years ago, in the landmark case Grutter v. Bollinger, 539 U.S. 306 (2003), the Court recognized colleges and universities could have a compelling interest in the educational benefits that flow from a diverse student body. The Court held the University of Michigan Law School’s race-based admissions program survived strict scrutiny and, therefore, did not violate the Equal Protection Clause. It reasoned the Law School used a holistic process that evaluated each individual candidate, as opposed to an unlawful quota system. Writing for the majority of the Court, Justice O’Connor noted, however, “race-conscious admissions policies must be limited in time” and the “Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

The Court’s SFFA Decision
The Court held the Harvard and UNC affirmative action programs violated the Equal Protection Clause for three principal reasons.

1. The Court Determined the Programs Lacked Focused and Measurable Objectives Warranting the Use of Race.

Harvard and UNC argued their programs advanced important educational goals, like the ability to train future leaders, foster innovative problem solving, promote the robust exchange of ideas, enhance appreciation, respect, and empathy, and support cross-racial understanding, all of which they claimed justify the use of a race-conscious admissions process.

Though the Court recognized these stated goals are commendable, it concluded they were not “sufficiently coherent” to withstand challenge under the Equal Protection Clause. In particular, the Court found no meaningful connection between the articulated goals and the affirmative action programs. The Court was particularly troubled by the fact the universities’ goals cannot be measured – e.g., how does one determine when a leader is sufficiently trained? And, even if the asserted goals could be measured, the Court reasoned there is no way for any court to identify when the goals have been reached, such that race-conscious admissions would no longer be needed.

2. The Court Determined the Programs Employed Race in a Negative and Stereotypical Manner.

The Court also found the Harvard and UNC programs relied on negative, racial stereotyping by adhering to the principle that there is an inherent benefit in “race for race’s sake.” By impermissibly assuming that all students of a particular racial category think alike, the Court reasoned the universities’ programs subordinated individual merit and qualities.

3. The Court Determined the Programs Lacked Logical Endpoints.

Finally, the Court found the Harvard and UNC programs lacked the “logical end point” the Court contemplated 25 years ago in Grutter. The Court rejected the universities’ claims the end point could be defined based on the point in time at which meaningful representation and diversity are achieved, or when students are nevertheless able to receive the educational benefits that diversity provides. It also declined Harvard’s and UNC’s invitation to allow affirmative action programs for another five years pursuant to Grutter.

Permissible and Impermissible Uses of Race
The Court did not explicitly overrule Grutter, but it effectively nullified it. Given the Court’s conclusion that Harvard’s and UNC’s cited compelling interests failed strict scrutiny because they were vague and immeasurable, it is unclear if there are any alternative compelling interests that would survive the Court’s exacting standard.

Race-Neutral Alternatives
Some studies suggest race-neutral alternatives are not as effective in achieving the educational benefits flowing from a diverse student body as when higher education institutions consider race in their admissions decisions. However, institutions still desiring to achieve and/or maintain a diverse student body should consider implementing race-neutral alternatives in their admissions procedures. The Department of Education (“DOE”) announced it will issue guidance for higher education institutions within 45 days of the Court’s ruling. Pending such guidance, some examples of potential race-neutral alternatives institutions can implement in their admissions processes include:

  • Reducing or eliminating the consideration of legacy status. Historically, students of color have been systemically excluded from higher education. As such, white students typically benefit from legacy admission preferences. Reducing or eliminating the number of legacy students admitted may pave the way for the admission of more first-generation students. Since the Court’s ruling, a complaint already has been filed with the DOE challenging Harvard’s legacy admissions practice.
  • Eliminating testing requirements. Standardized tests can be a barrier to students without the resources to master standardized test-taking. Eliminating or making standardized tests optional might reduce barriers to admission and broaden an institution’s applicant pool.
  • Diversifying and intensifying recruitment strategies and efforts in various communities. Institutions might consider diversifying and intensifying their recruitment strategies and efforts to focus on the recruitment of students in communities that are low-income and underrepresented at their institution. While attracting applications from new and low-income communities is an important step in achieving a diverse student body, institutions should monitor whether these new communities of students are enrolling at their institution.
  • Scholarships and financial aid. To increase the matriculation of admitted students from low-income and underrepresented communities, institutions might consider increasing their scholarship and financial aid programs for these admitted students.
  • Reducing preferences for athletes. Particularly for highly selective institutions, reducing admissions preferences for athletes (which, in highly selective institutions, commonly benefit white students) opens admission slots for other, potentially more diverse and deserving applicants.
  • Consideration of socioeconomic status. Perhaps the most commonly cited race-neutral admission policy is the consideration of an applicant’s socioeconomic status or class. Affording greater weight to socioeconomic status in admission decisions could result in the admission of more racially-diverse students.
  • Adopting a percentage plan for admissions. One race-neutral admissions policy that has been utilized is to adopt a plan that automatically admits students who graduate in the top five or ten percent of their high school class. That plan has been designed to promote diversity by reaching students from high schools across the state.
  • Consideration of an applicant’s individual experiences. In its decision, the Court expressed one race-neutral alternative institutions may consider is an applicant’s essay discussion of how their race affected their life experiences. An institution’s consideration of these life experiences in its admissions decisions might result in a more racially-diverse student body, provided institutions still adhere to the Court’s ruling in SFFA. Please see additional consideration of this race-neutral alternative below.

Institutions should be wary of implementing a race-neutral alternative that is simply a proxy for race, as challenges to admissions practices are likely to continue. Further, we anticipate the use and type of race-neutral alternatives to continually develop as institutions evaluate whether their admissions practices are achieving their goal of attaining the educational benefits of a diverse student body.

Scholarships and Financial Aid: An Open Question
The Court’s decision did not address the consideration of race in awarding scholarships or financial aid. Commonly, these scholarships are funded by private donors who have indicated their preference that the institution award the scholarship to a student of a certain race or ethnicity. As in their admissions decisions, institutions similarly are limited by the Equal Protection Clause and Title VI of the Civil Rights Act of 1964 in their ability to award scholarships based on a student’s race, and any consideration of race must survive strict scrutiny.

At least two institutions (the University of Kentucky and the University of Missouri-System) have already announced they interpret the Court’s decision as prohibiting them from considering race in awarding scholarships. However, many other institutions are still evaluating what the Court’s decision means for their scholarship programs. Institutions should analyze whether their scholarship and financial aid programs meet the standard outlined in the Court’s admissions decision – namely, do they: (1) have focused and measurable objectives warranting the use of race; (2) rely on race in a negative and stereotypical manner; and (3) have meaningful end points?

Takeaways for Colleges and Universities
As described above as one race-neutral alternative, the Court noted nothing in the opinion should be construed to prohibit universities from considering an applicant’s essay discussions of how race affected their life, including the impact of “discrimination, inspiration, or otherwise.” However, the Court stressed “universities may not simply establish through application essays or other means the regime we hold unlawful today.” The student must be treated based on their experiences, not on the basis of race. The Court’s caveat likely also will place a larger burden on applicants to discuss their experiences and be very thoughtful about how they represent themselves on their applications.

Higher education institutions should review their admissions policies and processes to ensure compliance with the Court’s decision. Some of the relevant considerations include:

  • Whether race or ethnicity is considered at any point in the application process, even if it alone is not a determinative factor.
  • Whether essay topics are written in such a way to consider only race or ethnicity, rather than the applicant’s personal background, experiences, inspiration, adversity she has overcome or contributions.
  • Whether an applicant is required to disclose her race and who sees that disclosure throughout the admissions process.
  • Whether a personal rating score system negatively impacts a particular racial group.
  • Whether admissions officers can use race or ethnicity in an initial or final recommendation for admission.
  • Whether any part of the admissions process gives an advantage to a student based on her membership in a marginalized racial group, rather than her individual characteristics.
  • What the articulated goals and rationale of the admissions process are and how those goals compare to those of Harvard and UNC.

Potential Far-Reaching Impact of the Court’s Decision
The Court did not address the use of affirmative action or diversity, equity and inclusion (“DEI”) initiatives in employment or the required affirmative action programs for federal contractors. Almost immediately after the Court’s ruling was made public, EEOC Chair Charlotte A. Burrows published an
official statement reminding employers, “It remains lawful for employers to implement diversity, equity, inclusion, and accessibility programs that seek to ensure workers of all backgrounds are afforded equal opportunity in the workplace.” We also anticipate no change to the affirmative action requirements for federal contractors given that they primarily focus on outreach and evaluation of those efforts and explicitly prohibit discrimination.  Nonetheless, the Court’s ruling further opens the door to legal challenges to affirmative action in employment, including comparisons to the percentage of different racial categories in the general population for goal setting.

Complimentary Webinar on July 12th
Please join us for a complimentary webinar July 12th from 10:00-11:00 a.m. Central as we further discuss the Supreme Court’s ruling in the affirmative action cases and their implications for higher education institution admissions and employers. Registration for the webinar is available

The authors would like to recognize Michael Best Summer Associate Julia Valgento for her contributions to this piece.

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