The pair of highly anticipated affirmative action decisions handed down by the U.S. Supreme Court this week will immediately affect admissions policies at institutions of higher education across the nation. Any institution that has not prepared for these rulings will need to review admissions policies and procedures, applications, essay questions and other related programs, including financial aid policies that may include race or related considerations in connection with student admissions.
In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, the U.S. Supreme Court struck down affirmative action admissions policies at two of the oldest private and public universities in the United States, Harvard University and University of North Carolina at Chapel Hill (UNC), respectively, in a ruling that will have wide-ranging and immediate implications for academia, and potential consequences for employment diversity initiatives.
In 2014, Harvard and UNC were sued by Students for Fair Admissions (SFFA), a nonprofit organization founded in 2014 with the goal of “defend[ing] human and civil rights secured by law, including the right of individuals to equal protection under the law.” SAFA argued in both cases that the institutions’ race-based admissions programs violated, respectively, Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the 14th Amendment. Both universities defended their admissions policies, which considered an applicant’s race at various points in the admission process, as necessary to achieve diverse classes which ultimately benefit society.
The courts in both cases held bench trials to evaluate SFFA’s claims. The District Court in the Harvard case concluded that Harvard’s admissions program comported with Supreme Court precedents on the use of race in college admissions. The 1st Circuit affirmed that determination. Similarly, in the UNC case, the District Court concluded that UNC’s admissions program was permissible under the Equal Protection Clause. The Supreme Court then consolidated both cases.
Chief Justice John G. Roberts, writing for the 6-3 conservative majority, stated that the “core purpose” of the Equal Protection Clause is “doing away with all governmentally imposed discrimination based on race,” and that “eliminating racial discrimination means eliminating all of it.” The majority concluded that the universities failed to offer “measurable” objectives to justify the use of race in their admissions programs, and that those programs could not be reconciled with the Equal Protection Clause because they “unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.” The majority concluded that the same reasoning applies to public schools, which are directly subject to the Equal Protection Clause as public entities, and private schools that receive federal funding, which are subject to Title VI. While prohibiting consideration of race in admissions decisions, Justice Roberts specified that “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.”
Justices Sotomayor, Kagan and Jackson dissented, with Justice Sotomayor asserting that the majority’s decision “rolls back decades of precedent and momentous progress,” and “cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.” Justice Ketanji Brown Jackson likewise attacked the majority opinion, stating “it would be deeply unfortunate if the Equal Protection Clause actually demanded this perverse, ahistorical, and counterproductive outcome.”
Institutions that take up Chief Justice Roberts’ offer to consider how race may have affected individuals will need to carefully consider how such information is reviewed and used by admissions officers. Overall, institutions striving to increase or maintain diversity in their student populations must tread carefully and explore different paths to reaching that goal. Even indirect means to achieve diversity may be subject to challenge.
Finally, this decision is specific to Title VI and the Equal Protection Clause. It does not, by its terms, extend to Title VII, which covers employment-related affirmative action programs. However, institutions must carefully consider and review employment affirmative action programs and diversity initiatives in light of this decision. Public institutions will need to especially review the potential effect this decision may have on employment issues because the holding is based on the Equal Protection Clause, opening public employers up to both statutory and constitutional challenges. Just as the Court, in this case, stated that admissions are a “zero-sum game,” the same can be said of employment decisions.
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