Last week, the United States Supreme Court issued its decision in Students for Fair Admissions, Inc. v. Harvard College. This decision concerned two companion lawsuits challenging the use of race as a criterion in the admissions processes at Harvard College and the University of North Carolina (UNC). The Supreme Court held that each university’s use of race in their admissions programs violated the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution.
The Supreme Court’s decision constitutes a departure from its prior landmark decisions concerning the use of race in university admissions, going back to Regents of the University of California v. Bakke in 1978. In Bakke, a divided Court issued six opinions. The plurality agreed to permit schools to use race as a “plus factor” to advance the goal of racial diversity, but expressly disallowed the use of quotas. Since Bakke, the Court has affirmed the use of race in admissions processes in four separate opinions, but did hold that any such use must survive “strict scrutiny” and be “narrowly tailored” to a compelling interest. Notably, in Grutter v. Bollinger, decided in 2003, the Court’s majority opinion, expressed an expectation that “25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
After reviewing its prior precedent regarding the use of race and affirmative action, the Supreme Court has now charted a different direction. The majority opinion, authored by Chief Justice Roberts, holds that any use of race as an admission criterion will trigger a more demanding form of strict scrutiny under the equal protection clause of the Fourteenth Amendment. The Court held that both Harvard and UNC’s admission programs failed its enhanced strict scrutiny requirement. Indeed, the Court’s new articulation of the strict scrutiny requirements may effectively eliminate any direct use of racial status as an admission criterion.
Importantly, in the majority opinion’s concluding remarks, the Court emphasized that its decision should not be construed to mean that schools are prohibited from considering how race impacted an applicant’s life, thereby demonstrating their desirability as a candidate. For example, if a student has overcome racial discrimination, or any other challenges, the Court acknowledged that any such information could demonstrate a student’s courage or determination, which are legitimate selection criteria.
It is also important to consider what the Court’s majority opinion does not say. It does not directly address broader diversity objectives or DEI initiatives. Nor does it speak directly to efforts to achieve diverse candidate pools. While its impact on admissions processes will be undeniable, universities still have meaningful, lawful options for promoting diversity amongst their student bodies and at their campuses more generally. In fact, the Department of Education and the Department of Justice have already committed to provide guidance to colleges and universities on lawful admissions practices within the next 45 days. In short, today’s decision will not be the last chapter in this story.
Employers and federal contractors should also consider the impact of this decision, as it is likely to reach far beyond university admissions decisions. The principles articulated will undoubtedly be invoked in the employment context as well. Accordingly, as employers evaluate their DEI efforts and programs to achieve diverse workforces, the Supreme Court’s closing guidance should be considered. A focus on individual achievements, determination, courage, and the like appears to have the blessing of the Supreme Court. Explicitly race-based considerations, however, will be subject to especially strict scrutiny.
We also expect that this decision will result in litigation pertaining to affirmative action in employment and the application of Executive Order 11246 for employers who are government contractors. President Biden has already indicated that the Court’s decision will not result in a change in his administration’s enforcement policy, so this position will likely be litigated in the courts as well.
