In a much-anticipated decision, the Supreme Court last week ended the use of race as a factor in college admissions, effectively overturning its precedent in Grutter v. Bollinger. In a vote of 6-3, the Court held that the admissions programs used by the University of North Carolina and Harvard College violated the Constitution’s Equal Protection Clause and Title VI of the Civil Rights Act. The Court found that both 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 endpoints. This decision will have important ramifications for selective college admissions programs and likely for other diversity, equity and inclusion efforts.
Writing for the majority, Chief Justice John Roberts noted that the Court’s opinion does not bar universities from considering an applicant’s discussion of how race affected their life, whether through discrimination, inspiration, or otherwise. Specifically, an applicant may explain how their race influenced their character in a way that would contribute to the university. However, the majority opinion emphasizes that a student “must be treated based on his or her experiences as an individual — not on the basis of race.”
In a pair of blistering dissents, Justices Sonia Sotomayor and Ketanji Brown Jackson excoriate the Court for overruling Grutter based not on any change in law or facts since the 2003 decision but only on a change in the Court’s personnel. The dissents further argue that the majority’s failure to face the continuing existence of racial discrimination in America and deal with its effects will only further delay the day when race will no longer matter and the United States can be truly color blind.
Any institution that has been using race-conscious admissions programs must take action now to review and revise those programs to comply with the Court’s decision. Furthermore, this decision is certain to engender additional litigation against any college or university that pursues racial diversity as a goal, even when using purely race-neutral means to achieve that goal.
A full summary of the majority opinion and the dissenting opinions follows. There is much to be analyzed in the Court’s majority, concurring and dissenting opinions. On June 29, President Biden issued a statement, calling on colleges, in choosing among qualified applicants, to give serious consideration to a student’s financial means, where the student grew up and went to high school, and personal experiences of hardship, including racial discrimination the applicant may have faced. The statement further promises that the Department of Education and the Department of Justice will provide guidance in 45 days to assist colleges “in administering programs to support students from underserved communities.”
If your institution has been using race as one factor in a holistic admissions program, 45 days are too long to wait to begin taking action. Here are some immediate takeaways from the decision to consider with appropriate leadership from your campus.
- Pursuing the educational benefits of a racially diverse student body remains a lawful goal in college admissions. The majority finds that this is not a compelling interest that supports the use of race-conscious means, but that does not mean that a college may not pursue a racially diverse student body. It means that if a college chooses to pursue a racially diverse student body, it may only do so through race-neutral means.
- Simply adopting a goal of obtaining a racially diverse student enrollment, however, will create some litigation risk and requires thoughtful and careful attention to mitigate that risk. While the majority opinion points out that a college does not have to be “race blind” to such an extent that it may not consider the essay of an applicant who writes about how their race has affected their lives, the majority also states that in such a circumstance, the consideration must be given to the experiences of the applicant as an individual, not based solely on the applicant’s race. The majority further cautions that colleges “may not simply establish through application essays or other means the regime we hold unlawful today.” In other words, what is a race-neutral means will not always be easy to discern. Colleges should be aware that even adopting racial diversity as a goal will entail a certain amount of litigation risk.
- Short and long-term considerations. In the short term, for the coming admissions cycle, the focus should be on ensuring that any race-conscious considerations have been eliminated from admissions programs and that personnel are appropriately trained. For the longer term, colleges seeking to create diverse student enrollments should consider a more comprehensive review of their student admissions programs (to the extent such a review has not already been performed) to determine the effect of all factors that are currently considered in admissions, as well as efforts at outreach, recruiting and to improve yield. Other longer-term strategies may include using “top ten percent plans” for public institutions or exploring interests other than an interest in the educational benefits of racial diversity for institutions with strong and more unique mission sets, like the military academies.
Chief Justice Roberts, joined by Justices Thomas, Alito, Gorsuch, Kavanaugh and Barrett, acknowledges that the admissions program at both Harvard and UNC consider race for “commendable goals,” such as “better educating its students through diversity” and “preparing engaged and productive citizens and leaders.” The majority finds however that these aspirational goals are not sufficiently coherent to satisfy strict scrutiny. Contrary to what the Court had found in Grutter and Fisher v. Univ. of Texas, the majority concluded that the question of whether a particular mix of minority students produces “engaged and productive citizens,” sufficiently “enhance[s] appreciation, respect, and empathy,” or effectively “train[s] future leaders” is standardless and thus, cannot be subjected to meaningful judicial review. Even if these goals were measurable, the court would be unable to discern when the goals were reached and when racial preferences were no longer necessary.
The majority found that not only are the admissions program goals undefined, but they also lack a meaningful connection between the means used and the goals pursued. The majority faults Harvard and UNC for measuring the composition of their classes by using racial categories without being able to concretely explain how these categories further the educational benefits the universities are claiming to pursue. The categories are imprecise, overbroad, arbitrary, and underinclusive. There were multiple instances of poor categorization: grouping all the Asian students together did not accurately represent the subcultures within the Asian diaspora; the Hispanic category did not reflect the constantly evolving culture of being Hispanic or Latino; and the Middle Eastern identity was completely missing and unrepresented. The universities provided the racial categories they used but could not explain why or how they used these categories to support their pursuit of educational benefits for their students.
Further, the majority held that race-based admissions fail to meet the twin commands of the Equal Protection Clause: race may never be used as a negative and may not operate as a stereotype. Despite objections from UNC and Harvard that race is never used as a negative factor for any applicant, the majority concluded that the zero-sum nature of selective admissions at these universities means that some students are certainly disadvantaged by the “plus” given to other students. Moreover, the majority found that the programs also rely on prohibited racial stereotyping, which is that minority students will always have the same views or perspectives on a particular issue. By resting on the belief that a black student can offer a fresh perspective just because they are Black, it argues that race in itself says something about who you are, when in fact, it does not, according to the majority. Students should be defined by their own unique experiences as an individual, not on the basis of race.
Finally, the majority observed the Harvard and UNC programs lacked the “logical endpoint” suggested by Grutter: both Harvard and UNC acknowledged that their programs do not have a “sunset” date. Indeed, “UNC suggests that it might soon use race to a greater extent than it currently does.” According to the majority, although Harvard and UNC employ a periodic review of their admission process, Grutter never suggested that periodic review could make unconstitutional conduct constitutional. The Grutter Court made clear that race-based admissions programs eventually had to end—despite whatever periodic review universities conducted.
The majority opinion does not engage in a stare decisis analysis of Grutter or Fisher and never states that it is overruling those precedents. But the other opinions of the Court, including a lengthy concurring opinion by Justice Thomas, forthrightly state what is written between the lines in the majority opinion: Grutter’s holding that higher education institutions may use race as one factor in a holistic admissions program, has been overturned. In a footnote, the Court notes that it is not ruling on any separate questions that may be presented by the use of race by the United States military academies, which, as suggested by the brief presented by the United States, may have national security interests in the use of race.
Justice Sotomayor, joined by Justices Kagan and Jackson, wrote a lengthy dissent from which she read from the bench for over 20 minutes. Justice Sotomayor’s dissent chides the majority for effectively overruling Grutter without engaging in any discussion of stare decisis. She notes that there has been no relevant change in the law or facts in the twenty-plus years since Grutter was decided, and all that has changed is the Court’s personnel. Justice Sotomayor confronts the majority’s claims that the use of race in admissions is harmful because it serves as a disadvantage to certain racial populations, is unworkable, and lacks an endpoint. Sotomayor also draws attention to the majority opinion’s negative impacts including that it exacerbates segregation, diminishes inclusivity in our institutions for the sake of superficial neutrality, promotes indifference to inequality, and ignores the reality of race.
Justice Sotomayor shows multiple instances where the Court’s supposed concerns are disingenuous and are instead a poor attempt to appear as if they are still promoting diversity while dismantling well-established precedent. She demonstrates that the majority’s arguments are all from the dissenting opinions in Grutter and Fisher—arguments that the majority in those cases rejected. She argues that the Court is moving the goalposts because, under genuine, faithful application of the Court’s established precedent, Harvard and UNC’s admissions programs are constitutional and lawful. Sotomayor encourages universities in the future to consider other factors that can foster diversity, such as socioeconomic status, first-generation status, or multilingual ability. All of these factors are race-neutral, and their use is not limited like the use of race is.
Justice Jackson also dissented, joined by Justices Sotomayor and Kagan. Justice Jackson’s dissent is a reprise of her questioning at oral argument, comparing the applications of two fictional characters, John and James, who are both residents of North Carolina. Both characters share similar attributes: both trace their family’s North Carolina roots to the year of UNC’s founding in 1789, and both want to honor their family’s legacy by attending the State’s flagship educational institution. John, however, would be the seventh generation to graduate from UNC; he is White. James would be the first; he is Black. Before fully answering whether race should play a role in UNC’s holistic application review in this context, Justice Jackson provides the reader with a deep dive into the historical context that a reader would need to know to answer this question truthfully.
This deep dive encapsulates examples of race-linked obstacles that the law (and private parties) established to hinder the progress and prosperity of Black people, including slavery; reconstruction; sharecropping; Jim Crow; the Great Migration; wealth gaps among Black, White, and Asian families; education levels and debt of Black, White, and Asian families; race-linked mortality; race-linked health inequalities, etc. Through this analysis, Jackson illustrates that “our country has never been colorblind,” and these race-based gaps have existed for as long as we can remember. After laying this foundation, she returns to the scenario of John and James. By acknowledging that at the bare minimum, one generation ago, James’s family was six generations behind because of their race (slavery, Jim Crow, state-sponsored race-based preferences, etc.) while John’s family was six generations ahead. Ultimately, she resolves “to say that anyone is now victimized if a college considers whether that legacy of discrimination has unequally advantaged its applicants fail to acknowledge the well documented ‘intergenerational transmission of inequality’ that still plagues our citizenry.”
Jackson argues that “race still matters to the lived experiences of all Americans in innumerable ways, and today’s ruling makes things worse, not better.” Colleges being required to ignore race, she added, would not make the issue go away — and would, in fact, make race matter even more and prolong the problem of racism. “With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat. But deeming race irrelevant in law does not make it so in life.” The majority’s attempt to use the Equal Protection Clause to curtail racial diversity in higher education, when it does not require this “obstructs our collective progress toward the full realization of the Clause’s promise, is truly a tragedy for us all.”
We continue to analyze the many threads of this complex set of opinions. Please contact the author if you have any questions about the case or how these issues affect your campus.
This client alert was prepared with substantial assistance from summer associates Tatiyana Lewis (University of Tennessee) and Kelsey Holmes (Howard University).