On June 29, 2023, the U.S. Supreme Court issued a landmark decision on the use of race as a factor in collegiate admissions in two cases brought by Students for Fair Admissions (SFFA). The Court held that admissions processes at Harvard University and the University of North Carolina at Chapel Hill violate Title VI of the Civil Rights Act of 1964 and, with respect to the public university, the Equal Protection Clause of the Fourteenth Amendment in the manner in which the universities consider race. The Supreme Court’s ruling and reasoning will have significant legal and practical implications for education and beyond.
Below are key details of the decision — and initial impressions of its impact on colleges, corporate affirmative action, and diversity efforts generally.
Background
On Jan. 24, 2022, the U.S. Supreme Court agreed to hear two cases on the use of race in undergraduate college admissions: one involving Harvard and the other involving the University of North Carolina at Chapel Hill. Both were brought by plaintiffs Students for Fair Admissions.
In the first case, filed against Harvard University, the plaintiffs contended that the university’s race-conscious admissions policy discriminates against Asian American student applicants. According to the plaintiffs, Asian American students are significantly less likely to be admitted to Harvard than similarly qualified white, black or Hispanic students. The group argued that the policy violates Title VI of the Civil Rights Act of 1964, which bans racial discrimination by entities receiving federal funding (and has been interpreted to impose the same limits as the Equal Protection Clause on funding recipients).
In the second case, filed against the University of North Carolina at Chapel Hill (UNC-CH), the plaintiffs argued that the university’s consideration of race in its undergraduate admissions process violates both Title VI and the U.S. Constitution — and, like Harvard’s process, constitutes discrimination against Asian American student applicants. (Unlike Harvard, UNC-CH is a public university and is therefore covered by the Fourteenth Amendment’s guarantee of equal protection.)
In both cases, SFFA asked the Supreme Court to overrule its 2003 decision in Grutter v. Bollinger. In Grutter, the Court held that, despite limits imposed by Title VI and the Equal Protection Clause of the U.S. Constitution, colleges and universities could consider race as part of a holistic admissions process — but only if considerations are “narrowly tailored” to advance the compelling interest in the educational benefits that come from a diverse student body (that is, if they satisfy the strict scrutiny standard). Grutter required colleges to (a) individually review applications, (b) not use racial quotas, and (c) evaluate whether race-neutral options could achieve the same diversity objective. SFFA argued in both cases that even if the racial diversity objectives and legal rule endorsed in Grutter are good in theory, they cannot be and were not being applied faithfully in practice.
SCOTUS SFFA Decision
In SFFA, the Supreme Court, in a decision authored by Chief Justice Roberts, sided with the student plaintiffs:
[W]e have permitted race-based admissions only within the confines of narrow restrictions. University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and — at some point — they must end. Respondents’ admissions systems — however well intentioned and implemented in good faith — fail each of these criteria. They must therefore be invalidated under the Equal Protection Clause of the Fourteenth Amendment.
The Court explained that the “core purpose” of the Equal Protection Clause was “doing away with all governmentally imposed discrimination based on race.” It reasoned that “[e]liminating racial discrimination means eliminating all of it.” The Court thus held that the Equal Protection Clause applies “without regard to any differences of race, of color, or of nationality — it is universal in its application, … such that the guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal.”
“That principle,” the Court explained, “cannot be overridden except in the most extraordinary case.” Although the Court had previously recognized such an exception in Grutter, the Court found that neither the Harvard nor UNC-CH programs could satisfy the limits that Grutter imposed. In particular, the Court concluded that both universities’ admissions processes “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. We have never permitted admissions programs to work in that way, and we will not do so today.”
The Court also noted 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. … But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today” as “[w]hat cannot be done directly cannot be done indirectly.”
The majority opinion explained:
A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student 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.
SFFA Decision’s Impact on Education and Campus DEI Efforts
Under the Court’s decision, the manner in which the admissions processes at Harvard and UNC-CH pursued racial diversity in their student bodies is unlawful. And the Court’s reasoning makes clear that it is going to be highly skeptical of similar efforts. Indeed, in his concurring opinion, Justice Thomas went so far as to conclude that, under the Court’s decision, “Grutter is, for all intents and purposes, overruled.” Thus, a college’s reliance on the Grutter standard going forward will be, at best, an extreme legal challenge. And, effective immediately, public colleges and universities and those receiving federal funding cannot consider race as a stand-alone factor (i.e., apart from how race potentially affected a particular applicant’s life and experiences) in evaluating applicants for student admissions — as part of a holistic review or otherwise.
As a starting-point response, in-house counsel should coordinate with their admissions offices to assess if and how race is currently being considered in the admissions process and begin work on establishing a new framework for the next admissions cycle, if necessary. Colleges and universities also should exercise caution when considering (a) whether to use separate selection factors as a “proxy” for race (e.g., socioeconomic status, geographic location); (b) how and when other protected classifications are used (e.g., gender); and (c) how best to document decision-making for the new admissions approach. As the Court majority asserted, “[t]he Constitution deals with substance, not shadows, and the prohibition against racial discrimination is ‘levelled at the thing, not the name.’”
In addition, education leaders should be mindful that the SFFA decision comes as lawmakers in several states — including Texas, Florida and Ohio — have passed bills that require the dismantling of diversity, equity and inclusion (DEI) offices or have similar laws pending for consideration. For example, earlier in June 2023, Texas passed a law banning DEI offices at public higher education institutions starting in 2024. (The Texas legislation defines a DEI office as one that provides different treatment to people based on race, sex, color or ethnicity through any policies, procedures, training, programs or activities). Further, the Texas law makes it illegal for public higher education institutions to require anyone to provide DEI statements or participate in DEI training.
SFFA Decision’s Impact on Employment
Although the SFFA decision doesn’t directly concern employment, the Court’s reasoning is also likely to have an impact on corporate DEI and affirmative action initiatives for employees — and the establishment of target goals used by employers to help measure such programs’ effectiveness.
For employers, with some very narrow exceptions, equal employment opportunity laws such as Title VII of the Civil Rights Act of 1964 prohibit making employment decisions in whole or part based on gender, race, ethnicity or other protected characteristics. This is true even if race or gender is used as a positive factor in advancing worthy diversity goals, and even if race or gender is not the deciding factor. Grutter’s endorsement of pursuing the educational benefits of diversity was a special Supreme Court exception for university admissions that never applied to public and private employers.
Having said this, language in the Supreme Court’s SFFA decision and challenges to DEI initiatives in higher education described above will invite increased focus on corporate diversity efforts and may generate an uptick in “reverse” discrimination employment claims by plaintiffs and government enforcement agencies. For example, with respect to the use of racial categories generally, the Court in SFFA asserts:
For starters, the categories are themselves imprecise in many ways. Some of them are plainly overbroad: by grouping together all Asian students, for instance, respondents are apparently uninterested in whether South Asian or East Asian students are adequately represented, so long as there is enough of one to compensate for a lack of the other. Meanwhile other racial categories, such as “Hispanic,” are arbitrary or undefined. … And still other categories are underinclusive. When asked at oral argument “how are applicants from Middle Eastern countries classified, [such as] Jordan, Iraq, Iran, [and] Egypt,” UNC’s counsel responded, “[I] do not know the answer to that question.” … Indeed, the use of these opaque racial categories undermines, instead of promotes, respondents’ goals.
Justice Gorsuch, concurring, also noted the SFFA decision’s potential ramifications on Title VII jurisprudence, stating:
If this exposition of Title VI sounds familiar, it should. Just next door, in Title VII, Congress made it “unlawful … for an employer … to discriminate against any individual … because of such individual’s race, color, religion, sex, or national origin.” Appreciating the breadth of this provision, just three years ago this Court read its essentially identical terms the same way. This Court has long recognized, too, that when Congress uses the same terms in the same statute, we should presume they “have the same meaning.” And that presumption surely makes sense here, for as Justice Stevens recognized years ago, “[b]oth Title VI and Title VII” codify a categorical rule of “individual equality, without regard to race.”
Further, recent lawsuits and Equal Employment Opportunity Commission charge complaints challenging diversity programs have been filed against multiple large corporations. The Supreme Court’s SFFA decision will likely encourage similar actions, while also fueling challenges to certain DEI practices at state and federal levels and via shareholder demands.
For further information or questions about the information contained in this legal alert, or for help analyzing the scope and impact of the SFFA decision on your organization, please contact the authors, your McGuireWoods contact, or a member of the firm’s education, appeals and issues, affirmative action, or labor and employment teams.
Related Webinar Replay
Affirmative Action in College Admissions and Employment: Impact and Takeaways From the Supreme Court’s Landmark SFFA Decisions
Thursday, July 6, 2023