On June 29, 2023, in a 6-3 decision along ideological lines, the Supreme Court drastically altered college admissions by ruling that affirmative action admissions practices violated the Equal Protection Clause of the Fourteenth Amendment. The opinion deciding a pair of cases, Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina (collectively, “SFFA Decision”) will reshape college admissions at both private and public institutions of higher education (“IHEs”), especially more competitive and elite IHEs, as students must be evaluated based on their experiences “as an individual – not on the basis of race.” Until the SFFA Decision, race could be used to achieve a diverse student body, as long as it was part of a holistic examination of a student applicant and was narrowly tailored to achieve the desired goal of diversity within the student body. However, on June 29, the Supreme Court upended precedent and concluded that the two schools’ affirmative action admissions policies, in seeking student body diversity, “lack sufficiently focused and measurable objectives warranting the use of race,” among other things.

Understanding the SFFA Decision

As we reported last year, the Supreme Court accepted these appeals from the U.S. Courts of Appeals for the First Circuit and the Middle District of North Carolina (bypassing the Fourth Circuit), directly challenging the established 20-year precedent Grutter v. Bollinger, 539 U.S. 306 (2003). Previously, both federal courts ruled in favor of Harvard College and the University of North Carolina, citing the clear and established precedent of Grutter. Despite the Biden administration's urging the Court to refrain from hearing these two cases, as “this [consolidated] case would be a poor vehicle for reconsidering Grutter,” the Supreme Court decided to grant certiorari.

The issue presented for the Supreme Court in the SFFA Decision was whether Harvard’s and UNC’s use of race in admissions violated the Constitution’s equal protection principles. Harvard is private institution subject to Title VI of the Civil Rights Act and UNC is a public institution subject to Title VI and the Equal Protection Clause of the Fourteenth Amendment. In a footnote, Chief Justice Roberts stated that the standards are basically the same, so both were evaluated the same way. In general, equal protection requires that government entities — including state-run universities — avoid distributing benefits or burdens based on race, unless those classifications meet a high standard. To justify race-based policies, the government must identify a compelling government interest and show that its policy is narrowly tailored to pursue that interest. This test is known as “strict scrutiny.”

Writing for the majority, Chief Justice Roberts emphasized that the majority’s approach was “color-blind” because, he said, giving Black and Latino applicants an edge over white and Asian applicants in the name of diversity violated the Equal Protection Clause. Chief Justice Roberts further wrote that “[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.” And despite both UNC’s and Harvard’s policies being modeled from Grutter, Chief Justice Roberts said, “We have never permitted admissions programs to work in that way, and we will not do so today.” However, IHEs’ admissions committees can still consider race so long as it is limited to the specific context of personal essays. Chief Justice Roberts said that “[n]othing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life” in a personal essay. But there was no elaboration as to how IHEs can do so.

In dissent, Justice Sotomayor argued that the Supreme Court had turned its back on 45 years of jurisprudence aimed at promoting more inclusive and equal schools. She wrote, “[T]he Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter. The Court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education.” Justices Sotomayor and Jackson also criticized the majority for making an exception for military academies, despite such an exception being unclear in the majority opinion. Justice Sotomayor called it arbitrary to focus on the military, while Justice Jackson stated, “The Court has come to rest on the bottom-line conclusion that racial diversity in higher education is only worth potentially preserving insofar as it might be needed to prepare Black Americans and other underrepresented minorities for success in the bunker, not the boardroom (a particularly awkward place to land, in light of the history the majority opts to ignore).”

What does this mean for IHEs?

IHEs now are forced to reconsider their admissions policies and the incorporation of race and ethnicity into such policies. The ruling is particularly likely to affect highly selective IHEs with low admission rates, unmatched financial resources to recruit, and access to social and employment networks historically reserved for the wealthy and elite. To avoid closing off these networks for many students of color and to continue benefiting from the perspectives and experiences that having a more diverse class brings, IHEs will have to find creative ways to shift admissions decision-making away from race.

What should IHEs do now?

The Supreme Court has undoubtedly made it more difficult for selective colleges to build undergraduate classes that reflect the diversity of America, or to counteract the structural racism that has historically defined higher education in America. However, the decision does not mean the end of diversity on campuses. Fortunately, IHEs can look to other IHEs in the states that have passed laws or referendums that bar affirmative action in public universities and can use their “race-neutral” alternatives as a guide. It is important for IHEs to look at their entire enrollment design and consider some of the “race-neutral” alternatives that IHEs can implement in that design, such as:

• Clearly and quickly communicate the effects of the SFFA Decision so that students from diverse backgrounds are not discouraged from applying;
• Implement “test-optional” policies of not requiring SAT and ACT scores for admission (benefiting students with lower standardized test scores but strong high school grades);
• Guarantee admission to every in-state applicant who graduates in the top 10% of their high school class;
• Create a percentage plan that guarantees admission to top-ranked students while also admitting more students from low-income high schools;
• Expand recruiting efforts in lower-income neighborhoods;
• Commence “pipeline” programs that enroll minority students;
• Increase diversity in IHE leadership, including on admissions teams; and
• Clearly communicate commitment to diversity and the issues most important to students from diverse backgrounds.

IHEs are encouraged to think about these “race-neutral” alternatives.