Supreme Court's Affirmative Action Decision Requires New Approaches To Achieving Diversity In Higher Education

• Published date: 06 July 2023
• Law Firm: Arnold & Porter
• Author: Mr John P. Elwood, James Joseph, Sean M. SeLegue, R. Reeves Anderson, Ebony Slaughter-Johnson and Andrew Tutt

On June 29, 2023 the Supreme Court issued landmark decisions in a pair of cases, Students for Fair Admissions Inc. v. President & Fellows of Harvard Coll., 599 U.S. ___ (2023) and Students for Fair Admissions Inc. v. Univ. of N. Carolina, 599 U.S. ___ (2023) that will transform the use of race in admissions to universities ' and will complicate the use of race in programs on college campuses (and potentially other areas of American life). This Advisory explains the background of the decisions and also provides an early analysis of how universities that hope to achieve the benefits of diversity might go about complying with the decision without sacrificing those goals.

Legal Background

Over the past half century, the Supreme Court has addressed the issue of affirmative action in higher education through a series of landmark cases regarding consideration of race in admissions policies. Throughout these cases, the Court has grappled with the delicate balance between promoting diversity and upholding the constitutional principle of equal protection. The Court has stressed the importance of narrowly tailored policies that consider race as only one aspect of a holistic admissions process. It has placed a significant burden on universities to justify consideration of race and has required them to continually review and refine their policies to ensure they remain necessary and appropriate.

In 1978, the Supreme Court made its first major foray into this area in the landmark case Regents of University of California v. Bakke. The Court's decision in Bakke was fractured, with no majority opinion. The Court ruled that strict racial quotas were unconstitutional, but Justice Lewis F. Powell, in a concurring opinion that is deemed controlling, allowed for the consideration of race as a factor in admissions to achieve diversity. Notably, Justice Powell looked to Harvard's admissions policies as a model of an institution that appropriately used race as a factor in admissions. The lack of a clear majority opinion, and the firmly held positions on both sides of the debate, left many questions unresolved and led to subsequent litigation on the issue.

In 2003, the Court revisited the issue of race in university admissions in a pair of cases involving the University of Michigan: Grutter v. Bollinger (involving law-school admissions) and Gratz v. Bollinger (involving undergraduate admissions). In Grutter, the Court affirmed that diversity in higher education was a compelling state interest, justifying the consideration of race as one factor among many in admissions decisions. Foreshadowing the Court's most recent ruling, Gratz held that a point-based system that automatically awarded points based on race was unconstitutional. Grutter also stated that it expected that "25 years from now" (i.e., by 2028) "the use of racial preferences will no longer be necessary."

In 2013, the Court dealt with the issue once again in Fisher v. University of Texas at Austin. In Fisher, the Court reaffirmed the importance of strict scrutiny in reviewing affirmative action policies. It held that universities must demonstrate that their use of race as a factor in admissions is narrowly tailored to achieve diversity and must also show that race-neutral alternatives are insufficient. Fisher held that race-conscious admissions must be a last resort. Then, in 2016, Fisher returned after proceedings on remand before a short-handed Supreme Court (the vacancy left by Justice Scalia's death remained, and Justice Kagan had recused herself because she'd been involved in the case while Solicitor General). A bare majority of the Court held by a 4-3 vote that the University of Texas's undergraduate admissions system was narrowly tailored to serve the compelling interest in student body diversity.

Background on the Cases Before the Court

Students for Fair Admissions Inc. (SFFA) v. Presidents and Fellows of Harvard College and Students for Fair Admissions Inc. v. University of North Carolina (UNC) are both direct challenges to the use of race as a factor in admissions at Harvard (a private university) and the University of North Carolina at Chapel Hill (a public university). In both cases, SFFA sought an absolute prohibition on consideration of race in admissions and alleged that, even under current law, the respective universities were not in compliance.

The Harvard case was the first challenge to a race-conscious admissions policy involving a private college to reach the Supreme Court. SFFA argued that Harvard's consideration of race as one of many factors in admissions violated Title VI...