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On June 29, 2023, the U.S. Supreme Court determined in Students for Fair Admissions, Inc. v. University of North Carolina, et al. (6-3) and Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (6-2) that the consideration of race as a factor in college admissions is unconstitutional. In both cases, Students for Fair Admissions, Inc. challenged the constitutionality of affirmative action in higher education. The Court held that race-conscious admissions programs violate the Equal Protection Clause of the Fourteenth Amendment.

Previous Precedent: Grutter v. Bollinger (2003)

On June 23, 2003, Justice Sandra Day O’Connor authored the landmark Grutter v. Bollinger decision which recognized affirmative action as a constitutional practice of achieving a racially diverse campus at institutions of higher education. In effect, Grutter allowed colleges and universities to consider race as one factor in the admissions process if evaluated using a holistic approach rather than a quota system. Under this precedent, an institution of higher education must first employ race-neutral alternatives before using race in an admissions process. In Grutter, the Court held that while “narrow tailoring does not require exhaustion of every conceivable race-neutral alternative” it does “require serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks.”

The Court recognized the importance of cultivating a diverse campus community, concluded that the defendant university sufficiently considered workable race-neutral alternatives, and held that the Equal Protection Clause of the Fourteenth Amendment does not prohibit the narrowly tailored use of race in university admissions as part of a compelling interest in obtaining the educational benefits that flow from a diverse student body. Critically, Justice O’Connor indicated that “race-conscious admissions policies must be limited in time” and “that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” And now, twenty years later, the Court has drawn the line.

Students for Fair Admissions, Inc. Challenges Affirmative Action

 In the Students for Fair Admissions, Inc. cases, the plaintiff organization challenged the constitutionality of permitting race to be considered as a factor in college admissions under Title VI of the Civil Rights Act and the Equal Protection Clause of the Fourteenth Amendment. Specifically, Students for Fair Admissions, Inc. alleged that Asian Americans have been penalized in Harvard’s admissions process by receiving lower rankings on leadership and likeability than similarly qualified white, Black, and Hispanic applicants. With respect to the case against the University of North Carolina, Students for Fair Admissions, Inc. argued that the defendant unconstitutionally set seats aside for disadvantaged applicants and considered race in its admission process. However, the university contended it cannot achieve a truly racially diverse campus without utilizing a race-conscious admissions process that had been found constitutional under Grutter.

Critical Takeaways

The advocates addressed the constitutional appropriateness for universities to consider race in higher education admissions. These oral arguments included reference to: (1) the Court’s 1954 decision in Brown v. Board of Education; (2) race-neutral alternatives for achieving diversity in a college’s student body; (3) how to determine whether the benefits of diversity have been achieved; (4) the fact that nine states have barred the consideration of race in the admissions process of its public universities; and (5) the potential negative impact disallowing race to be considered in admissions will have  on diversity in higher education and ultimately in professions.

The June 29, 2023 Court’s opinion holds that it is no longer constitutionally appropriate for universities to consider race as a factor in admissions decisions.

The Court concluded that race-conscious admissions programs are unconstitutional. Specifically, the Court noted that the prior reasons cited for allowing race to be considered as a factor in admissions decisions, i.e., “training future leaders, acquiring new knowledge based on diverse outlooks, promoting a robust marketplace of ideas, and preparing engaged and productive citizens” are not sufficient because they “are not sufficiently coherent for purposes of strict scrutiny” by the Court. The Court further held that the means employed to achieve educational diversity were overboard, arbitrary, and underinclusive given the myriad of racial compositions and identities. Accordingly, “achieving educational diversity” no longer constitutes a “compelling interest” under a court’s application of strict scrutiny. The concurring Justices furthered these points by addressing the vagueness associated with achieving educational diversity and the inability to narrowly tailor the means of achieving such a goal. While the dissenting Justices made clear that the “limited use of race [as permitted by Grutter] has helped equalize educational opportunities for all students of every race and background and has improved racial diversity on college campuses,” the concurring justices noted that, “[w]ithout . . . guardrails, the Fourteenth Amendment would become self-defeating, promising a Nation based on the equality ideal but yielding a quota- and caste-ridden society steeped in race-based discrimination.”

The Court held that the defendant's race-based admissions programs “fail[ed] to comply with the Equal Protection Clause’s twin commands that race may never be used as a ‘negative’ and that it may not operate as a stereotype.” When analyzing race as a potential “negative,” the Court considered the lower court’s finding that a defendant’s admissions policy resulted in “an 11.1% decrease in the number of Asian-American students admitted . . . .”  Furthermore, the Court determined that the admissions programs violated the Equal Protection Clause because the programs used race as a “stereotype,” i.e., that the admissions programs found “an inherent benefit in race qua race—in race for race’s sake.”

Additionally, the Court concluded that the defendants’ race-based admissions programs lacked a “logical end point.” Accordingly, the Court articulated that it had “no reason to believe that [the universities] will—even acting in good faith—comply with the Equal Protection Clause any time soon” given the inherent difficulty in measuring and determining when “meaningful representation and meaningful diversity” are achieved. Therefore, the Court held that the “admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause [because] [b]oth programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.”

The decision leaves room for college admissions programs to consider how race has affected or impacted an individual’s life; nevertheless, applicants must be evaluated based on the applicant’s experience as an individual, not on the basis of the applicant’s race. The Court, therefore, distinguishes race as a status and how race has impacted an individual’s unique life experiences.

From Title VI to Title VII: Will the Court’s Decision Apply to Employers?

In response to the Supreme Court’s Students for Fair Admissions decision, Equal Employment Opportunity Commission (EEOC) Chair Charlotte Burrows made a statement articulating that the decision does not address employer efforts to foster a diverse and inclusive workforce. Chairwoman Burrows further stated that, “[i]t 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.”

Practical Considerations

Given the evolving nature of these matters, employers should engage counsel to review current DEI initiatives, hiring and promotion practices, and recruitment efforts and gauge compliance with federal, state, and local law. The Court’s decision may lead to more questions and inquiries from employees of all backgrounds. Anticipating these questions by engaging counsel in advance will help employers better navigate these anticipated conversations and inquiries and mitigate risk. Lastly, employers must remain informed regarding the EEOC’s anticipated guidance and any current obligations under current laws and regulations governing equal employment opportunity practices.

Buchanan’s higher education and labor and employment attorneys are closely monitoring the Student for Fair Admissions decision and any forthcoming development and guidance. If you have questions regarding your company’s DEI, hiring, and promotion policies and the impact of the Students for Fair Admissions, Inc. opinion, please contact the authors.