In a 6-3 decision, the U.S. Supreme Court held that admissions programs at Harvard and the University of North Carolina violate the equal protection clause of the 14th Amendment, and that race can no longer be used as a factor in admissions.
A core principle of the equal protection clause is elimination all official state sources of racial discrimination. Both schools consider race in each phase of the admissions process, with the ultimate goal being to ensure there is no “dramatic drop-off” in minority admissions from the prior class.
The court referenced the case of Grutter v. Bollinger, 539 U.S. 306 (2003), in which it held that using race in admissions was a compelling state interest because it furthered student body diversity. Grutter also held that at some point in time, the use of race must end. The court reasoned that “the importance of an end point was not just a matter of repetition. It was the reason the Court was willing to dispense temporarily with the Constitution’s unambiguous guarantee of equal protection.” With the decision in Students for Fair Admissions Inc. v. Harvard and UNC, the use of race in college admissions ends.
Chief Justice John Roberts wrote the opinion for the majority. Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson dissented.
Using the strict scrutiny standard of review, the court needed to answer a two-part test: whether racial classifications furthered a compelling governmental interest; and whether the government’s use of race is narrowly tailored, or necessary, to achieve that compelling interest.
The court determined that what the schools claimed were compelling governmental interests, such as training future leaders, acquiring a world view based on diverse outlooks, and preparing engaged and productive citizens, are too subjective to be measured. The court juxtaposed the schools’ stated compelling interests to judicially recognized compelling interests in prior case law, such as whether temporary racial segregation of inmates in prison prevents harm to other incarcerated persons (Johnson v. California, 543 U. S. 499), and decided that whether a particular mix of minority students produces “engaged and productive citizens” or effectively “train[s] future leaders” is “standardless.”
The court also held that the schools failed the second prong of the strict scrutiny test because they could not “articulate a meaningful connection between the means they employ and the goals they pursue.”
The court rejected the universities’ argument that they should be accorded deference in their use of race as a factor in admissions, saying that deference can exist only within constitutionally permissible boundaries. The court agreed with the 1st U.S. Circuit Court of Appeals ruling that race-based admissions policies violated the 14th Amendment because under equal protection, race cannot be used as a negative or stereotype. The 1st Circuit held that Harvard’s race-based admissions process used race as a negative because it resulted in fewer Asian American admissions.
The court also held that race-based admissions require stereotyping, for example, assuming that all students of a particular race, because of their race, think alike. Harvard’s and UNC’s admissions processes was no longer acceptable, the court stated, because they “lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points … Many 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.”
Roberts noted that universities may consider in an applicant’s essay how race “has affected his or her life, be it through discrimination, inspiration or otherwise.”
Sotomayor, writing for the dissent and summarizing her views from the bench, expressed deep disappointment in the ruling. It rolls back decades of progress in achieving racial diversity and equal opportunities in higher education, she stated. For over 40 years, the court has upheld the limited use of race under the equal protection clause as a valid way to promote diverse student bodies in colleges and universities, she said, adding that the majority opinion is based on the misperception that racial inequality was “a problem of a different generation” when, in fact, “entrenched racial inequality remains a reality today.”
President Biden criticized the ruling and said that schools should find other ways to diversify their student bodies. “We cannot let this decision be the last word,” he said. He added that he has directed the Department of Education to review college admission practices and give “serious consideration” to adversities students have overcome, such as lack of financial means, where a student went to high school, and any racial discrimination or experiences of hardship a student faced. The review will also examine legacy admissions, which are believed to favor relatives of university alumni over disadvantaged applicants.
Susan Frederick is NCSL’s senior federal affairs counsel.