By Attorney Jazmine Polk
On Thursday, June 29, 2023, the United States Supreme Court majority opinion in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, overturned affirmative action at colleges and universities, holding that the race-conscious admissions processes at Harvard College (Harvard) and the University of North Carolina (UNC) are unconstitutional.
Prior to this ruling, colleges and universities were allowed to have “holistic” admissions programs that considered “all pertinent elements of diversity,” under the Supreme Court rulings in Regents of University of California v. Bakke (1978), Grutter v. Bollinger (2003), and Fisher v. University of Texas at Austin (2013). Under Bakke, Grutter, and Fisher, colleges and universities could consider an applicant’s race as a “plus” factor to achieve a “diverse student body.” Now, the Supreme Court has determined that a student’s race cannot be a factor in college admissions, overturning decades of precedent.
Both Harvard and UNC had similar admissions processes that involved rating applicants in various categories such as academics, extracurriculars, athletics, and legacy status. The racial composition of an applicant could also be considered. For example, Harvard’s admissions process allowed for race to be a “determinative tip” for “all admitted African American and Hispanic applicants.” UNC’s process involved giving applicants a significant “plus” based on their race. Students for Fair Admissions (SFFA), a non-profit organization, brought suit against Harvard, arguing that it was discriminating against Asian applicants in its admissions process. SSFA also brought suit against UNC, arguing that it was discriminating against white and Asian applicants by giving a preference to black, Hispanic, and Native American applicants.
In Thursday’s decision, the Supreme Court considered whether the admissions systems used by Harvard and UNC were lawful under the U.S. Constitution. In a 6-3 vote in the NC case and a 6-2 vote in the Harvard case, the Court held that both admissions processes violated the Equal Protection Clause of the Fourteenth Amendment. In the majority opinion, Chief Justice John Roberts wrote that “we 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.”
First, the Court noted that it is unclear how to measure whether Harvard and UNC have met their specific goals of achieving educational diversity through their admissions programs. The Court questioned if Harvard’s and UNC’s goal to “train future leaders” could be met by having a “mix of minority students.” The Court also emphasized that using race as a factor provided advantages to one group of applicants at the expense of another group, which made race a negative factor. Lastly, the Court pointed to the fact that both programs lacked a “logical end point,” which is required under Grutter, because it is unclear when the racial preferences can end. Overall, the Court determined 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.” The programs “cannot be reconciled with the guarantees of the Equal Protection Clause.”
However, colleges and universities can still consider race in some instances, the Court stated. Roberts wrote “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.” Thus, the discussion of an applicant’s race should be tied to a “quality of character” or “unique ability” that an applicant can contribute to the college or university.
Iowa is not among the nine states that already prohibited any consideration of race in admissions to their public higher education institutions. Thus, the Court’s decision could affect not only admissions in Iowa colleges and universities, but it could impact scholarship programs and financial aid, recruitment efforts, and other diversity, equity, and inclusion initiatives. Private institutions should note that the Equal Protection Clause does not regulate the conduct of private actors; however, the Supreme Court held that violations of Equal Protection committed by an institution that accepts federal funds also constitutes a violation of Title VI of the Civil Rights Act, which was applied to Harvard in this case.
The Court’s ruling is binding on Iowa courts. Therefore, it applies to all colleges and universities, except military academies. Please contact the Ahlers & Cooney Higher Education practice group for further discussions as to how this opinion affects your admissions policies. We will continue to monitor developments in this matter and provide updates upon further action from the Supreme Court or guidance from the Department of Education.
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