Affirmative Action in Admissions - The Students for Fair Admissions Opinion

The U.S. Supreme Court’s decision in Students for Fair Admissions will change the landscape for consideration of race in higher ed. admissions practices. Here is a rundown from Bricker Graydon Higher Education attorneys addressing what college and university administrators can do now, what institutions might expect next, and what the Court actually said. 

What do we do now? 

Currently, the decision’s impact is limited to the consideration of race in selective admissions practices. The full impact of the Students for Fair Admissions decision will be realized in the months and years to come. Future legal challenges, political discourse at the federal and state level, and administrative agencies like the U.S. Department of Education will clarify the permissibility of institution-wide affirmative action programs. These sources will provide institutional leaders with guideposts for establishing compliant recruitment, admissions, and retention programs that maintain diversity, equity, and inclusion on campus moving forward. For now, colleges and university administrators should:

• Get a foundational understanding of their admissions process. Is the process clearly defined and documented? What are the factors considered at each stage of the application review process? How is the pool of applicants narrowed? Who determines which applicants receive offers?  
• Create a policy preventing consideration of race in admissions AND design appropriate training and accountability measures to ensure the policy is properly implemented.  

• Note: The Court’s decision distinguishes the plain consideration of an applicant’s race in their personal statement (unlawful) and the more nuanced consideration of how race affected an applicant’s life in such a way that they exhibit a quality of character or unique ability that might be of benefit to the institution. 

• Consider non-race-based identities (geographic location, economic status, etc.) and attributes desirable (resilience, perseverance, empathy, etc.) in the student body. Determine means to quantify or qualify an applicant’s possession of those desirable traits based on the contents of their application. Be sure that non-race-based identities are not being used as a proxy for race.  
• Focus on expanding outreach and recruitment efforts to draw applications from a broader pool of candidates of diverse geographic and economic backgrounds who may not have otherwise applied to your institution. (Consider the use of the College Board’s Landscape^TM tool.) 
• Assess the institution’s capacity to engage with and retain the diverse student population already on campus. 
• Ensure that the admissions program has a comprehensive records retention policy and that training and accountability measures in place to properly implement the policy.  
• In anticipation of potential future challenges: Note any campus race-based scholarships and programs and consider how they may be affected if challenged. 

What will we see next? 

Reactions from the Dept. of Ed., colleges and universities, litigants, and politicians were swift and are ongoing: 

Ed Announcements and Pending Guidance 

On June 29, 2023, the U.S. Department of Education Secretary, Miguel Cardona, issued a statement on behalf of the Department in response to the U.S. Supreme Court’s release of their opinion in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.¹ In his statement, Secretary Cardona made clear that the Biden-Harris Administration will support higher education institutions in their pursuit of lawful practices to enhance student body diversity. He reiterated the Department’s commitment to equal access and educational opportunity for all students.  

The Department later issued a Fact Sheet² outlining President Biden’s plan to support higher education institutions in navigating this new legal landscape. The Biden-Harris Administration has called on institutions to consider an applicant’s financial background, geographic location, and personal hardships or adversities. The Administration has said that, by doing so, “colleges and universities can fully value aspiring students who demonstrate resilience and determination in the face of deep challenges.”  

The Department has committed to publishing guidance on or before August 13, 2023, clarifying the kinds of admissions programs and practices that remain lawful. The Department also plans to convene a National Summit on Educational Opportunity to discuss strategies and best practices for expanding access to postsecondary educational opportunities. Following the Summit, the Department will produce a report on these strategies and best practices. The Department has not yet released a date for the Summit but has committed to publishing the report by September 2023.  

Peer Guidance 

Well before the U.S. Supreme Court’s June 29, 2023, decision in Students for Fair Admissions, in 1995, the Board of Regents for the University of California (UC) voted to eliminate the use of affirmative action. Then, through a successful ballot initiative in 1996, California enacted Proposition 209 to ban, in pertinent part, the consideration of race and gender in public education. Similarly, in 2006, the voters in Michigan passed a constitutional amendment, Proposal 2, to restrict its public universities from considering race in admissions decisions. As detailed in their publications and respective amici briefs in Students for Fair Admissions,³ in the 25 years since public universities in California have stopped the consideration of race in admissions and the 17 years since public universities in Michigan have done the same, these universities have taken many steps to try to grow and maintain diverse student populations. According to the states’ respective data sets, they have yet to succeed in sustaining or exceeding the racially diverse student bodies they achieved prior to their race bans in admissions.   

In California’s public university systems, the racial diversity of the student population plummeted in the first several years following the ban, especially at UCLA and UC Berkeley. UC has been closely tracking the impact on the labor market from these changes and identified programs that, while they do not meet the levels of inclusion achieved under affirmative action, have shown success in recouping some of the racial diversity in the student population at various campuses.⁴ UC implemented several race-neutral admissions approaches across its many campuses, including automatic acceptance of the top 4-9% of students at all high schools. However, UC has noted that the most effective approach to raising the level of racially underrepresented students is a holistic approach which, in part, gives applicants the ability to contextualize any disadvantages they may have faced during their lifetime. In this way, a holistic review may increase the racial diversity of an admitted class because some disadvantages, such as housing discrimination and school segregation, have historically disproportionately affected racially underrepresented students.⁵   

Similarly, the University of Michigan (U-M), in its public response to the Students for Fair Admissions decision, acknowledged its trials and successes trying to create a diverse student population following Michigan’s enactment of Proposal 2 by leveraging its diversity, equity, and inclusion strategic plan.⁶ Similar to the process at UC, U-M also implemented a holistic application review in their admissions process. The institution considers a comprehensive range of factors when reviewing an application, including applicants’ personal circumstances, socioeconomic status, geographic area, neighborhood, and high school.⁷

Further Challenges 

While the Court’s decision was limited to Harvard and UNC’s practice of considering race in admissions, we already see the impact on other college and university admissions practices and the potential for the scope of the decision to be more broadly interpreted to prohibit other types of affirmative action programs. 

In the courts, litigants are already challenging other admissions practices scrutinized in the Students for Fair Admissions decision. On July 3, 2023, less than a week after the Court issued its decision, a group of Black and Latino organizations filed suit against Harvard, challenging the institution's use of legacy preference in admissions under Title VI of the Civil Rights Act of 1964.⁸ The position bolsters the arguments made by the Court’s dissent in Students for Fair Admissions, suggesting there is a race-based disparate impact when Harvard considers legacy admissions.  

At the same time, we are also observing political action in furtherance of the purported tenants of the decision. The same day the Students for Fair Admissions decision was issued, Missouri’s attorney general, Andrew Bailey, sent letters to the University of Missouri system and Missouri State University requiring they “must immediately adopt race-blind standards” for “not just college admissions, but also scholarships, employment, law reviews, etc.”⁹ At least one Republican Congressman, J.D. Vance, criticized certain institutions that put out statements expressing disappointment with the Students for Fair Admissions decision and continued to commitment to diversity, equity, and inclusion on campus. On July 6, 2023, Senator Vance issued a letter to Oberlin and Kenyon colleges in Ohio and eight Ivy League colleges and universities suggesting that they expressed “openly defiant and potentially unlawful” reactions to the Students for Fair Admissions decision. The letter requested that the colleges and universities preserve records for a potential congressional probe and respond to specific inquiries about future admissions practices and admissions records preservation.¹⁰ 

What happened? - Summary of the Opinion  

On June 29, 2023, in an opinion authored by Chief Justice Roberts, a 6-3 majority of the U.S. Supreme Court struck down Harvard College and the University of North Carolina’s race-conscious admissions process, finding that both programs failed to meet the requirements of strict scrutiny. See, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. ____ (2023).¹¹ The majority opinion, citing Grutter v. Bollinger, 539 U.S. 306 (2003), found that after stating that “any exception to the Constitution’s demand for equal protection [under the Equal Protection Clause of the Fourteenth Amendment] must survive a daunting two-step examination known in our cases as “strict scrutiny.” The Court further stated that in the context of using a racial classification, the racial classification must be used to “further compelling governmental interest” and must be “narrowly tailored” – meaning “necessary” – “to achieve that interest.” Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. ____ (2023). The Court articulated a third element specific to race-based admissions that culled from the Grutter opinion; specifically, race-conscious admissions programs must have a time limit.   

Before analyzing whether or not Harvard and UNC’s admissions processes met this newer three-step analysis, the majority opinion articulated “two dangers that all race-based government action portends.” The first risk is that the use of race will devolve into “illegitimate . . . stereotyp[ing].” (Citing Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989)). The Court referencing Grutter cautioned that “universities were thus not permitted to operate their admissions programs on the “belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue.” (Id. quoting Grutter, 539 U.S., at 333.)   

The opinion articulated a second risk of the government considering race would be “used not as a plus [factor], but as a negative – to discriminate against those racial groups that were not the beneficiaries of the race-preference. Accordingly, a university’s use of race could not occur in a manner that “unduly harm[ed] nonminority applicants.” (Id. citing Grutter at 341.)  

Using the two factors for strict scrutiny, and the time limitation reference in Grutter, the Court found that the educational benefits of diversity articulated by Harvard and UNC were not “sufficiently coherent for the purposes of strict scrutiny.” Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. ____ (2023).  Harvard’s educational benefits included (1) “training future leaders in the public and private sectors;” (2) preparing graduates to “adapt to an increasingly pluralistic society;” (3) “better educating its students through diversity;” and (4) “producing new knowledge stemming from diverse outlooks.”  Id. UNC has articulated similar benefits which the Court identified as “(1) promoting the robust exchange of ideas; (2) broadening and refining understanding; (3) fostering innovation and problem-solving; (4) preparing engaged and productive citizens and leaders; [and] (5) enhancing appreciation, respect, and empathy, cross-racial understanding, and breaking down stereotypes.” Id. The majority opinion found that these “commendable goals” were “not sufficiently coherent for the purposes of strict scrutiny.”   

Next, the majority opinion found that Harvard and UNC’s “admissions programs failed to articulate a meaningful connection between the means they employ [holistic admissions procedures] and the goals they pursue [the educational benefits of diversity].” After discussion about the types of racial categories used to identify the racial composition of campus, the Court found that the use of six categories (1) Asian; (2) Native Hawaiian or Pacific Islander; (3) Hispanic; (4) White; (5) African-American; and (6) Native American, created a circumstance in which these racial categories created ambiguities that made it impossible for the justices who signed on to the majority opinion to measure the impacts of the use of race in admissions.   

The majority opinion expressed concerns that race-conscious admissions processes were selecting students based on race and that this violated the Equal Protection Clause: 

We have time and again forcefully rejected the notion that government actors may intentionally allocate preference to those “who may have little in common with one another but the color of their skin.” The entire point of the Equal Protection Clause is that treating someone differently because of their skin color is not like treating them differently because they are from or a city or from a suburb, or they play violin poorly or well.   

Id.   

After finding that both UNC and Harvard’s programs “lacked sufficient focus and measurable objectives warning the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful endpoints[,]” the majority opinion cautioned institutions about universities establishing the consideration of race “through application essays” or “other means the regime we hold unlawful today.” The option explained further that this does not prohibit a student from discussing their racial identities in an admission essay when discussing that individual student’s experiences and achievements:  

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. 

Id. 

It’s important to note that the majority opinion does not expressly overrule Grutter. While it appears to remain silent on whether Grutter is expressly overruled, Justice Thomas’s concurrence writes separately to state that the “colorblind Constitution” prohibits the use of affirmative action. While the majority opinion seems to provide some guidance in its colloquy about the use of admissions essays, it leaves open some uncertainty as to what admissions programs would meet the definition of strict scrutiny based on the discussion within the majority opinion.