The U.S. Supreme Court ruled last Thursday in Students for Fair Admissions v. Harvard, No. 20–1199 (2023) that Harvard and the University of North Carolina’s race-conscious admissions policies violate the Constitution in a split 6-3 ruling condemning affirmative action in higher education. The case overturned Grutter v. Bollinger, 539 U. S. 306 (2003) and ended all affirmative action for college admissions except for military academies. The funny thing is that in both cases, neither admissions policy was about affirmative action, but about proportional representation, i.e. quotas.

Chief Justice Roberts writing for the majority stated that the 14^th Amendment applies to this situation.  In particular, they wrote that “[e]liminating racial discrimination means eliminating all of it. Accordingly, the Court has 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.” “T]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color.”

The Supreme Court also stated that “[m]any universities have for too long wrongly concluded that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned, but the color of their skin.  This Nation’s constitutional history does not tolerate that choice.”

The case started when the coalition Students for Fair Admissions or SFFA argued that Harvard’s process discriminated against Asian-American applicants because of a subjective personal rating through which those applicants received lower scores due to racial bias. In effect SFFA argued that the president and fellows of Harvard College violated Title VI of the Civil Rights Act of 1964 by limiting the number of Asian American applicants accepted.  The Trump U.S. Department of Justice backed SFAA, claiming that “Harvard provides no meaningful criteria to cabin its use of race.”

After trial, the court ruled for Harvard stating it did not violate Title VI.  The trial court also ruled that a student admissions process that favors "underrepresented minority groups" does not violate the Fourteenth Amendment's Equal Protection Clause so long as it takes into account other factors evaluated on an individual basis for every applicant.  Interestingly enough, the judge did state that Harvard’s admission process could benefit from implicit-bias training for admissions officers, maintaining clear guidelines developed during this litigation to focus on the use of race in the admissions process, monitoring admissions officers, and making them aware of any significant race-related statistical disparities in the rating process.

The case was appealed by SFAA. The First Circuit affirmed, and Supreme Court granted certiorari.

SFAA also sued the University of North Carolina for having similar practices in their admission process.   They lost and appealed.  However, before the appeal was determined, the Supreme Court granted certiorari to combine the case with the Harvard case.

At oral arguments, both the counsel for Harvard and for University of North Carolina were asked whether the case was a Title VI (limiting it to universities) or constitutional case.  Both said constitutional.  As such the case was decided accordingly.

The Supreme Court used the 14^th Amendment approach to determining violations.  The approach the Supreme Court stated was that “[a]ny exceptions to the Equal Protection Clause’s guarantee must survive a daunting two-step examination known as “strict scrutiny,” which asks first whether the racial classification is used to “further compelling governmental interests,” and second whether the government’s use of race is “narrowly tailored,” i.e., “necessary,” to achieve that interest.  The Supreme Court stated that neither university could meet this test. 

For example, Harvard stated its goals as follows:

(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.”

The Supreme Court stated that “[a]lthough these are commendable goals, they are not sufficiently coherent for purposes of strict scrutiny.  At the outset, it is unclear how courts are supposed to measure any of these goals.”  In other words, nice try but not good enough. 

The Supreme Court then found that neither university could articulate how their admissions programs have a meaningful connection between the means they employ and the goals they pursue.  For example, the University of North Carolina focuses on the racial composition of their classes to ensure parity.  That approach is a quota and not even a legal and legitimate end.

Then citing the Grutter case, the court pointed out the risks of using race-based decision making for the admissions process.  The first is the risk that the use of race will devolve into “illegitimate . . . stereotyp[ing].”  The second risk is that race would be used not as a plus, but as a negative—to discriminate against those racial groups that were not the beneficiaries of the race-based preference.  Therefore, citing Grutter, which had an end date of 25 years needed for affirmative action, the Supreme Court ended it early after 20 years.

However, the Supreme Court did throw a lifeline to universities- they can consider an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university. 

The issue now for employers is how much this decision will bleed into its diversity and/or affirmative action efforts.  Given that the case was decided on 14^th Amendment grounds, diversity programs must tread carefully.  Why should these programs be worried? Many of them unfortunately are following the schools’ approach to “diversity” using representational quotas for internal targets and publishing those targets.  Many have implemented programs without any discussion with the compliance people and have put the employer at risk for discrimination claims.  Under the 14^th Amendment, all races are protected, and no one race can be above the others except for very narrow reasons, like historical discrimination.   

On the positive side, unless new cases arise, diversity programs should be allowed to have aspirational goals, but not proportional representational goals.  Pipeline development of employees and socio-economic groups can still be a focus in the future.  On the negative side, or positive depending on your viewpoint, Executive Order 11246 could be the next lawsuit citing violation of the 14^th Amendment.

Source: The National Law Journal 6/29/23, the Students for Fair Admissions v. Harvard, No. 20–1199 (2023)