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U.S. Supreme Court Clarifies Affirmative Action in Higher Education

on Tuesday, 11 July 2023 in Labor & Employment Law Update: Sarah M. Huyck, Editor

A recent United States Supreme Court ruling, curtailing the use of affirmative action in higher education, will require many universities to alter their admissions processes. Affirmative action in the educational context is the use of race-conscious admissions policies that are designed to restore those who have experienced discrimination, foster diversity, facilitate integration, and diffuse racial prejudice. The Supreme Court’s 6-2 decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and its 6-3 decision in Students for Fair Admissions, Inc. v. University of North Carolina, issued on Thursday, June 29, 2023, clarified the Court’s previous holdings in Grutter v. Bollinger and Regents of the University of California v. Bakke.

Students for Fair Admissions (“SFFA”), a nonprofit organization, brought the two cases. The SFFA alleged that Harvard College and The University of North Carolina (UNC) (collectively, the “Universities”) rejected a number of Asian applicants due to the use of affirmative action measures during the admissions processes. The SFFA argued, on behalf of the affected students, that affirmative action programs racially discriminated against Asian students because Asian admissions would be reduced compared to other racial minorities with the same grades and test scores. Harvard’s admissions process allows admissions screeners to take race into consideration in their initial admissions decisions, and again in the final stage of admissions. UNC gives admissions screeners the authority to factor in the student’s race into his or her admission’s decision as a “substantial ‘plus,’” depending on the student’s race.

The Equal Protection Clause, applicable to the States through the Fourteenth Amendment, ensures all persons have equal protection under the law. The Court has interpreted this language to mean that government actions, which distribute burdens or benefits based on race, are presumptively invalid unless they meet the two-part strict scrutiny test. The strict scrutiny test requires a “compelling government interest” that is “narrowly tailored” to that interest. In determining whether universities may make admissions decisions that turn on an applicant’s race, the majority opinion reasoned that the affirmative action programs both Universities utilized did not meet the strict scrutiny standard for race-based admissions procedures under the Equal Protection Clause. The Court held that affirmative action did not meet a compelling government interest because the end goal of these programs is unclear and too ambiguous to meet this rigorous standard. The Court also reasoned that the program did not meet the narrowly tailored requirement because it is overly broad in its application. Additionally, the Court noted that both Universities’ admissions procedures fail for three further reasons. For one, “an individual’s race may never be used against him in the admissions process,” which was effectively occurring when applicants were rejected based on their race. Second, the Court reiterated its “forceful[] reject[ion]” of universities preferring “those ‘who may have little in common with one another but the color of their skin’” because universities are assuming that applicants’ particular race allows them to think alike. The Court reasoned, “[s]uch stereotyping can only ‘cause[] continued hurt and injury.’” Third, both Universities lacked “a ‘logical end point.’”

From a practical standpoint, the Supreme Court’s ruling will require many universities that use race-conscious admissions processes to change their criteria and procedures. The majority opinion clarifies that its holding does not prevent universities from considering the experiences or adversities faced by a person due to his or her race, and they may continue to use other means to foster diversity on their campuses. However, race alone shall not be a determining factor in higher education admissions decisions: “what cannot be done directly cannot be done indirectly.”  

While some will be tempted to view this decision narrowly as affecting only universities, the legal reasoning used by the Court has the potential to significantly impact employers as challenges arise to race based decision-making in Diversity, Equity and Inclusion and other programs.

Natalie Wisnieski, Summer Associate

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