CLIENT ALERT: SUPREME COURT EFFECTIVELY ENDS THE USE OF RACE IN ADMISSIONS
By Linh Nguyen and Dan Lydon
In a landmark 6-3 decision with significant legal and practical consequences for public and private higher education institutions, the U.S. Supreme Court has ruled that the use of race as a factor in admissions by Harvard College and the University of North Carolina (UNC) violated the Equal Protection Clause of the Fourteenth Amendment. The opinion is written by Chief Justice Roberts, who states that under the Fourteenth Amendment, “Eliminating racial discrimination means eliminating all of it.” The Chief Justice’s opinion is joined by Justices Alito, Barrett, Thomas, Gorsuch, and Kavanaugh with Justices Sotomayor, Kagan, and Jackson dissenting.
Central to the majority opinion is the Court’s standard of analysis, referred to as “strict scrutiny,” for racial classifications used by public entities, which would otherwise be prohibited by the Equal Protection Clause, to further a “compelling interest.” The Court has recognized in prior cases (e.g., Regents of the Univ. of California v. Bakke, Grutter v. Bollinger, Gratz v. Bollinger, and Fisher I and II) that the educational benefit of diversity served a compelling interest for colleges and universities to consider a student applicant’s race among other factors in admission decisions, so long as the use of race is “narrowly tailored” towards this aim. Similar to Harvard and UNC, higher education institutions have modeled their admission systems on the legal precedent of these cases.
Mapping out the Court’s historical interpretation of the Equal Protection Clause and strict scrutiny analysis in race-based admissions programs, Chief Justice Roberts identifies four limitations on the use of racial classifications to achieve a compelling interest: (a) the compelling interest must be “measurable and concrete” so as to be “subjected to meaningful judicial review,” (b) the use of race must not rely upon stereotypes or “the belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue,” (c) the use of race must not be used in a negative way that discriminates against individuals who do not benefit from the “race-based preference,” and (d) the race-based admissions program must have an articulable “termination point” or “reasonable durational limits” by which the compelling interest will be achieved.
For each of these limitations, the Court was not persuaded that Harvard and UNC’s admissions programs justified the use of racial classifications and thus, violated the Fourteenth Amendment. Namely, measuring the educational benefits of diversity received by students was “inescapably imponderable” and “standardless” for judicial review. Additionally, the classifications used by Harvard and UNC relied upon ambiguous racial categories that were too attenuated to their intended educational benefits, operated upon racial stereotypes about the uniform viewpoint of individuals belonging to the same minority groups, and employed race as a “negative” for non-minority students due to the “zero-sum” nature of admissions decisions. Most notably, Chief Justice Roberts emphasized the lack of a “logical endpoint” or termination date by which the schools’ considerations of an applicant’s race would end, stating that the Court previously permitted this consideration in Grutter as a “temporary matter” from the “norm of equal treatment” guaranteed by the Equal Protection Clause of the Fourteenth Amendment. In a concurring opinion, Justice Gorsuch extends the implications of the Court’s ruling to private higher education institutions that receive federal funds pursuant to the statutory language of Title VI of the Civil Rights Act of 1964.
Higher education institutions must now consider whether the Court’s articulated limitations leave any room for the consideration of race in admissions under the Fourteenth Amendment, and revise their admissions policies and protocols accordingly. Chief Justice Roberts clarifies that schools are not prohibited from considering an applicant’s race as a benefit, so long as it is tied to understanding the applicant’s experiences as an individual and the “touchstone” of their identity in terms of “challenges bested, skills built, or lessons learned.” This direction from the Court likely offers little clarification to schools that already intended and designed their consideration of race as a tool for understanding an applicant’s individual characteristics and unique abilities to contribute to the educational institution.
Going forward, higher education institutions will need to pursue race-neutral alternatives to achieve the educational benefits of diversity. Race-neutral alternatives being explored by some institutions include considering an applicant’s eligibility for a federal Pell grant due to exceptional financial need, considering an applicant’s status as a first-generation student due to their parents not attending or completing college, and removing legacy policies that give preferential treatment to family members of alumni.
HMBR’s Higher Education Group will continue to monitor the effects of this ruling. Should you have any questions or concerns about possible implications for your postsecondary institution, please feel free to contact us at 312-946-1800.