Key Takeaways:
- The Supreme Court is expected to rule in SFFA v. Harvard College and SFFA v. University of North Carolina in late June. The Court will decide whether and to what degree universities can continue to consider race in admissions policies.
- Although the Court has historically subjected race-conscious admissions policies to strict scrutiny, it has acknowledged that student body diversity is a compelling state interest. This is likely to change with the anticipated SFFA rulings.
- Universities can plan for the Court’s consequential rulings by proactively assessing existing admissions policies and creating new policies as needed.
As this academic year comes to a close, higher education institutions are waiting to see what the future holds for race-conscious admissions. As these institutions are well aware, the Supreme Court heard oral arguments in Students for Fair Admissions (“SFFA”) v. Harvard College and SFFA v. University of North Carolina (“UNC”) on October 31, 2022 and is weighing whether and to what degree colleges and universities [1] can continue to consider race in admissions policies.
As we anticipate the Court’s rulings in these cases—likely to be issued in late June—we provide a brief reflection on the current legal landscape and look ahead to assess potential outcomes from the SFFA decisions. We end this alert discussing ways in which universities can proactively take steps to prepare for the next era of college admissions.
The Current Legal Landscape Shaping Race-Conscious Admissions
Admissions policies that take race into consideration have long been viewed with skepticism by courts. Because such policies are race conscious, they are subject to a “strict scrutiny” analysis. To survive strict scrutiny, a university must demonstrate that its admissions program furthers a compelling interest and is narrowly tailored to accomplish that interest.
For decades, the Supreme Court has acknowledged that student body diversity and the educational benefits that flow from it constitute a compelling interest that can justify a university’s consideration of race in admissions. In first articulating this interest in the 1978 landmark case Regents of Univ. of Cal. v. Bakke, Justice Powell emphasized that the “nation’s future depends upon leaders trained through wide exposure to the ideas and mores of students as diverse as this Nation of many peoples.”[2] In Grutter v. Bollinger, the Court formally “endorsed” Justice Powell’s view, holding that “student body diversity is a compelling state interest that can justify the use of race in university admissions.”[3] In 2016, the Court reaffirmed that student body diversity can amount to a compelling interest, but declined to defer to the university’s general claim to that interest, instead requiring a university to demonstrate its compelling interest in a manner that is clearly identified, definite, and precise.[4]
Once a university articulates a compelling interest, it must still ensure its admissions policies are narrowly tailored. To ensure narrow tailoring, a university must demonstrate both that its policy is necessary to accomplish its stated interest and that it engaged in serious, good faith consideration of workable race-neutral alternatives. Universities bear the burden of proving that race-neutral alternatives are insufficient. This step in the analysis has historically been the focus of the Court’s attention, and where the Court has raised the bar for universities. Although the Court has not established clear parameters for what sort of policy would pass muster, its jurisprudence has set out some guideposts. For example:
- Racial balancing and/or quotas are impermissible. Universities cannot admit a pre-specified number of students from a particular racial group. Universities can pay some attention to numbers and even have minimum goals, so long as the admissions program remains flexible and includes some variation from year to year. Certain uses of racial data may also be permissible (such as assessing the efficacy of recruiting efforts and managing yield rates).
- Race may not be used as a mechanical plus factor. Instead, universities can conduct a holistic, individualized review of applications and consider race contextually. An applicant’s race or ethnicity cannot be the defining feature when admissions counselors weigh the merits of an application.
Adhering to Supreme Court doctrine in this arena has been no small feat. But next month, the landscape for universities’ admissions programs is predicted to shift significantly.
What to Expect from the Court’s Decisions in SFFA v. Harvard College and SFFA v. UNC
SFFA, a nonprofit membership group open to anyone opposed to racial preferences in college admissions, argues that race-conscious admissions practices unlawfully discriminate against applicants on the basis of race. By initiating parallel suits against both the U.S.’s oldest private and public universities, SFFA advances its claims for racial discrimination under two separate theories:
- In SFFA v. Harvard College, SFFA alleges that Harvard violates Title VI of the Civil Rights Act, which bars colleges and universities that receive federal funding from discriminating on the basis of race, asserting, among other allegations, that Asian-American applicants are less likely to be selected for admission than similarly situated White, Black, or Hispanic applicants.
- In SFFA v. UNC, SFFA alleges that UNC violates the Equal Protection Clause, which bars government entities from discriminating on the basis of race, by using a race-conscious admissions process when doing so is not necessary because of an available race-neutral alternative.
The Court is expected to issue both decisions in late June, likely on the same day. Below are four potential outcomes educational institutions may anticipate, starting with the most extreme change:
1. The Court overturns
Grutter entirely, rejecting student body diversity as a compelling interest, and requiring that university admissions programs be race-blind. Under this regime, a university would not be able to consider race
at all in its admissions process, even contextually or holistically. For example, applicants would not be able to write about race in their admissions essays or refer to membership in affinity groups or other organizations that may signal a specific racial or ethnic background.
We view this as the least likely outcome given that SFFA, despite originally advocating for this result, abandoned it at oral argument, instead arguing that an applicant could still address race in an essay if they so choose.
2. The Court overturns Grutter entirely, rejecting student body diversity as a compelling interest, and permits universities’ admissions programs to consider race only through volunteered individual stories that speak to an applicant’s character, values, or lived experiences. Race alone cannot be a factor, no matter how small. In this scenario, diversity goals based on race are impermissible and race alone cannot tip admission in an applicant’s favor in any way.
We view this as the most likely outcome.
3. The Court overturns Grutter entirely, rejecting student body diversity as a compelling interest, but giving universities four years to adjust their admissions programs, given Grutter’s “sunset provision.” In Grutter, the Court “expect[ed] that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”[5] In accordance with this “sunset provision,” the Court may give college four years to adjust their admissions policies. This scenario would otherwise be similar to the outcome described in scenario 2.
We view this outcome as likely in light of the Court’s focus on the 25-year sunset provision at oral argument.
4. The Court affirms Grutter in theory, acknowledging that student body diversity may qualify as a compelling interest, but further heightens the strict scrutiny standard. In this scenario, a university may have to prove its compelling interest with greater precision by, for example, providing concrete time horizons for its admission programs’ diversity efforts and specific metrics to measure effectiveness of these efforts. The Court might also further raise the narrow tailoring requirements, expanding what qualifies as a “mechanical plus factor” or demanding that universities engage in more stringent considerations around workable race-neutral alternatives.
We view this outcome as somewhat unlikely.
How Higher Education Institutions Can Proactively Plan with Actionable Next Steps
A university should not wait for the Court to act before taking action to address its admissions policies. Now that the current admissions cycle is largely complete, we encourage institutions to be proactive and assess their admissions policies. For example:
- Take this opportunity to engage in a university-wide audit of admissions practices. Pay attention to not only the language of admissions policies and materials—both internal and external—but also where race factors in the day-to-day activities of admissions staff that may not be memorialized in writing.
- Investigate current financial aid practices, policies, and goals (including restricted and endowed scholarships) and the interplay between financial aid and admissions.
- Review any existing diversity statements and external communications regarding diversity, equity, and inclusion (“DEI”). Prepare draft talking points, FAQs, and formal press releases in anticipation of the Court’s ruling.
- Consider an even broader review to address other diversity practices that could be impacted by the Court’s decisions. For example, assess employment practices, policies, and goals, paying particular attention to existing recruitment or retention efforts.
- Make concrete plans for periodic review of the institution’s DEI practices and assemble a team of key stakeholders that can respond quickly to new developments.
- Public institutions should also monitor their state’s legislative efforts to restrict or ban DEI initiatives at public colleges. There are currently more than 30 bills across the country targeting DEI funding, practices, and promotion at higher education institutions.
As we await the Court’s consequential rulings, universities can take steps now to assess existing policies and pen new policies as needed. Doing so will equip universities with a strong foundation to confront the changing landscape of race-conscious admissions. Our team is happy to help your institution with this process and provide practical advice and guidance. We will continue monitoring these cases and any related news closely and provide additional alerts with the latest developments.
[1] In this client alert, we use “higher education institutions,” “colleges,” and “universities” to refer to all postsecondary educational institutions whose admissions policies are implicated through Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause.
[2] Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 312 (1978) (opinion of Powell, J.).
[3] Grutter v. Bollinger, 539 U.S. 306, 325 (2003).
[4] Fisher v. Univ. of Tex. (Fisher II), 579 U.S. 365, 381-82 (2016). In Fisher II, the University of Texas Austin (“UT”) established its interest through (1) certain educational values, including eliminating stereotypes and preparing students for an increasingly diverse society; (2) a UT-commissioned study offering reasoned explanations for its pursuit of diversity goals; and (3) record evidence from UT admissions officers. Id.
[5] Grutter, 539 U.S. at 343.
