GrayRobinson Higher Education Team: Affirmative Action in Admissions - Is a New Day Coming?

April 15, 2022

College and universities should consider planning now for significant restriction on the use of race in admissions applications. The United States Supreme Court has agreed to hear two cases involving college admissions:  Students for Fair Admissions v. President & Fellows of Harvard College, and Students for Fair Admissions v. University of North Carolina, consolidating the cases for one hour of oral argument, most likely in October 2022.


Case Background

Current race-conscious admissions practices are built on a legal framework arising from Regents of the University of California v. Bakke, a 1978 Supreme Court decision that struck down racial quota systems, but found diversity to be a compelling interest. Because achieving diversity is a compelling interest, the court held that universities can consider race as one of many factors in making admission decisions, so long as their admissions process is "narrowly tailored." Narrow tailoring requires that a college show it does not have race neutral alternatives to achieving diversity in admissions. The Baake decision was later affirmed by the court in its 2003 decision in Grutter v. Bollinger.

The last time the Supreme Court weighed in on affirmative action was in 2016 in Fisher v. University of Texas at Austin, (there were actually two cases, Fisher I and Fisher II) when the justices ruled 4-3 to uphold the University of Texas at Austin’s race-conscious admissions policy. In Fisher II,  the court decided that the university could not achieve sufficient diversity in its admitted class without considering race as a factor in admissions decisions and upheld their process.


Current Cases

The makeup of the current Court is more conservative than the Fisher court, which could result in a very different ruling.


Harvard Case

In the Harvard case, the Plaintiff  alleges that Harvard’s undergraduate admissions process violates Title VI of the Civil Rights Act of 1964 by discriminating against Asian American applicants in favor of white applicants. The Plaintiff  asserts that Harvard engages in racial balancing of its undergraduate class; impermissibly uses race as more than a "plus" factor in admissions decisions; considers race in its admission process despite the existence of workable race-neutral alternatives; and intentionally discriminates against Asian American applicants.

The trial court, in a 133 page decision, upheld Harvard’s admissions process, finding that though  it might be imperfect, it passes constitutional muster. The court also found no evidence of prejudice against Asian Americans. The court held that Harvard did not engage in racial balancing and that it treated applicants as individuals with "every applicant competing for every seat" through a process of individualized, holistic review. In other words, race was "never… the ‘defining feature’ of applications."

The Court also rejected the plaintiff’s arguments that there were numerous race-neutral alternatives that could have been used to achieve diversity without consideration of the applicants’ race; however, after a thorough assessment of Harvard’s admission practices, the court determined that these alternative processes would have no meaningful impact on diversity, except to result in a significant decline in the admission of black and Hispanic students. The court held that if consideration of race in admissions were to cease, it would diminish Harvard’s overall excellence and student experience.

The Trial court decision was appealed to the First Circuit Court of Appeal which affirmed.


University of North Carolina (UNC) Case

In the North Carolina case, the Plaintiff alleged that UNC’s admissions policy violates the Equal Protection clause of the Fourteenth Amendment. The District court found that UNC produced substantial, credible, and largely uncontested evidence that it has made the deliberate decision to pursue the educational benefits that flow from student body diversity; it offered a principled, reasoned explanation for this decision; and that the benefits the university seeks to achieve are sufficiently measurable to permit judicial scrutiny."

The district court denied each party’s motion for summary judgment and the parties appealed to the Circuit Court of appeal; however, before the Circuit Court could hear the case, the Supreme Court decided to assume jurisdiction. This is not often done by the Court and indicates that the justices are anxious to consider the issues raised in that case.


Possible Outcomes

So, what will the Supreme Court do? The possible outcomes include:

  • The Court could affirm the lower court decisions and current Supreme Court precedent; however, considering the effort of the Court to hear these cases, that is not likely.
  • The Court could limit its ruling to the particular facts of each case and determine that  Harvard and/or UNC did not sufficiently consider race neutral alternatives or treated race as a determinative rather than a "plus" factor and, therefore, find their particular admission practices were not narrowly tailored. This would avoid addressing the constitutional issues and leave room for colleges to distinguish their practice from those of Harvard and UNC.
  • Finally, they could go "all in" and hold that diversity is no longer a compelling interest and that any admissions process considering race in any way violates Title VI or the equal protection clause of the Constitution. This could make it very difficult for colleges and universities to maintain a diverse student body.


Proactive Measures to Consider Now

Assuming the Court uphold prior rulings that diversity is a compelling interest, but instead raises the bar for showing that there are no race-neutral alternatives to the consideration of race, there are a few things your institution should consider.

First, focus on specific educational outcomes you are seeking and ask whether, why, and how race and ethnicity of individuals needs to be considered to achieve those outcomes. Second, review admission policies and practices to make sure they clearly articulate diversity goals.

Third, continue conducting holistic reviews of applications. Fourth, make sure that any consideration of race is nuanced; focus on individual strengths, perspectives, and experiences of each applicant, including race and socio-economic factors. These may lead to a diverse class without overtly considering race. Finally, be able to document your efforts to explore any race-neutral means to achieve diversity so you can defend you practices if tested in court. 



Contact Scott Cole or a member of GrayRobinson's Higher Education Team