[co-author: Inaya Soudan]

In a landmark decision, the Supreme Court held last month that race-based college admissions programs violate the U.S. Constitution’s promise of equal protection under the law. The main issue before the court in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, et al. was whether the admissions systems used by Harvard and UNC, two of the oldest institutions of higher learning in the United States, were lawful under the Equal Protection Clause of the 14th Amendment. The Equal Protection clause states, in relevant part:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Harvard and UNC both have competitive admission processes, evaluating myriad factors in deciding which applicants to admit, including, but not limited to, GPA, letters of recommendation, extracurricular activities, community involvement, experiences with overcoming adversity and race. While the schools argued that they have developed and maintained strategies to ensure the yield rates in their admissions demographics do not significantly undercut minority students, the petitioners asked the court to overrule its 2003 decision in Grutter v. Bollinger, which upheld the use of race-conscious admissions programs so long as they were narrowly tailored for a compelling interest.

How did we get here?

This lawsuit began in 2014 when Students for Fair Admissions (SFFA), an organization that routinely challenges colleges and universities with affirmative action policies across the U.S., alleged Harvard and UNC’s admissions procedures violated the Civil Rights Act of 1964 and the Equal Protection Clause of the 14th Amendment. In the Harvard case, a lower court found that the admission procedures aligned with precedent and allowed the use of race-based considerations in admissions. This ruling was appealed but then affirmed by the 1st U.S. Circuit Court of Appeals. Similarly, in the UNC case, the lower court ruled that race-based considerations were permitted under the Equal Protection Clause. SFFA appealed to the 4th U.S. Circuit Court of Appeals, which agreed to hold the case in abeyance after the Supreme Court granted review. The Supreme Court granted certiorari to hear both cases.

The SFFA Decision

In its 6-3 decision, the Supreme Court found that both Harvard and UNC’s admissions programs violated the Equal Protection Clause because they “lack sufficiently focused and measurable objectives warranting the use of race.” Writing for the majority, Chief Justice John G. Roberts said students “must be treated based on his or her experiences as an individual, not on the basis of race. Many universities have for too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual's identity is not challenges bested, skills built or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice.”

The majority opinion clarified, however, 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.”

Dissent

In a dissenting opinion, Justice Sonia Sotomayor discussed the history of affirmative action and why such policies were implemented by UNC and Harvard in the first place. Significantly, she stated that “equality requires acknowledgement of inequality,” and the majority’s “interpretation of the Fourteenth Amendment is not only contrary to precedent…but also grounded in the illusion that racial inequality was a problem of a different generation.”

Employer Takeaways

Several recent articles suggest that employment-based diversity efforts will next be a target of legal challenges, but for now, SFFA should not dissuade employers’ efforts to foster diverse and inclusive workforces or to engage the talents of all qualified workers, regardless of their background. In fact, following the decision, Charlotte A. Burrows, chair of the Equal Employment Opportunity Commission, said it “does not address employer efforts to foster diverse and inclusive workforces or to engage the talents of all qualified workers, regardless of their background. It 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.” However, colleges and universities impacted by SFFA should carefully review and, if necessary, revise their admission processes to ensure they are compliant with the ruling.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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