The U.S. Supreme Court ruled in June 2023 that affirmative action based on race was not allowed for college admissions. The Supreme Court’s landmark ruling in Students for Fair Admissions, Inc. V. President and Fellows at Harvard College has triggered a wave of admissions changes in universities throughout the U.S., and caused uncertainty and confusion among students who are applying to colleges this year. The ruling also caused widespread debates and scrutiny about affirmative action programs, and more generally diversity initiatives and programs. This information is intended to clarify the main issues, legal arguments and implications for different stakeholders including universities, students and entities outside higher education.
Students for Fair Admissions, Inc. v. University of North Carolina et. al. (also known as “SFFA“) is a pair of Supreme Court decisions that dealt with the constitutionality of affirmative action based on race at public and private universities. Students for Fair Admissions (SFFA) alleged that Harvard College, University of North Carolina, and other universities violated the Equal Protection Clause of the Fourteenth Amendment, and Title VI of Civil Rights Act of 1965, because they discriminated against Asian American candidates based on race and ethnicity. The Supreme Court has accepted for 45 years that colleges and Universities can consider an applicant’s race when making admissions decisions. This is to ensure they are able to reap the educational benefits from diversity. SFFA claimed, however, that despite Asian American applicants’ superior academic qualifications, they were not admitted to Harvard and UNC under their admissions scheme. SFFA argues that this combination of factors is evidence that affirmative action policies are discriminatory. SFFA requested that the Court prohibit the universities from “using race as a determining factor in future undergraduate decisions” and to require them to conduct all admissions “in a manner which does not allow those involved in the decisional processes to know or learn the race or the ethnicity of any applicants for admission.” 1:14-cv-14176).
Who is the plaintiff?
Students for Fair Admissions, a non-profit legal advocacy group, was the plaintiff in every case. SFFA was founded in 2014 by Edward Blum, a conservative legal activist. It is an offshoot from another organization, the Project on Fair Representation, which represents students, parents and other stakeholders with a single mission: to eliminate racial preference in college admissions. Blum sees SFFA as part of a larger project to eliminate race based policies in American law. In an 2023 interview with the New York Times, Blum said: “I do not believe that race or ethnicity should be used as a tool to benefit or hurt someone in their endeavors”.
What was the Supreme Court ruling?
The Supreme Court ruled on June 29, 2023 that affirmative action based on race, i.e., considering a candidate’s race when making admissions decisions, in order to maximize the educational benefits of diversity is unconstitutional. The ruling overturned 45 years’ worth of legal precedent.
In Chief Justice John Roberts opinion he outlined the three reasons affirmative action policies in Harvard and UNC violated federal anti-discrimination laws, specifically Title VI of Civil Rights Act of 1965 and the Equal Protection Clause of Fourteenth Amendment: (1) The policies lacked coherent, focused goals to justify the consideration of race, (2) Universities used an applicant’s racial background in a negative manner, and (3) There were no “meaningful ends” for these policies. Students for Fair Admissions, Inc., v. President & Fellows of Harvard College, 14 U.S. 2141, 2175 (2023)
Roberts writes that “courts cannot license the separation of students on the basis race without an extremely persuasive justification which is measurable and tangible enough to allow judicial review.” , at 2168. The Court also made it clear that universities cannot try to circumvent its ruling by “establishing[ing] the regime we consider unlawful today” through application essays, or any other means.
The Court acknowledged that affirmative action goals articulated in the Harvard and UNC cases were “commendable,” but they were not “sufficiently cogent for the purposes strict scrutiny.” Id., at 2154. Chief Justice Roberts said emphatically that “eliminating racism means eliminating it all.”
What impact does this have on the next admissions cycle?
In its decision in SFFA, the Supreme Court ordered colleges and universities not to use race in their admissions processes. This ruling means that schools who may have previously relied on race conscious admissions policies will now need to find new ways to achieve their diversity goals. Harvard, for example, changed its application to require five short-answers questions that ask students how they plan to contribute towards a diverse student population. Harvard previously included an optional long-form essay, which allowed applicants to choose any topic.
Chief Justice Roberts stated that, “nothing” in the opinion should be interpreted as prohibiting universities to consider an applicant’s discussion about how race has affected their life, whether through discrimination or inspiration. Students For Fair Admissions 143 U.S. 2176. It is therefore important to emphasize that, while race cannot be taken into consideration in an admissions decision; an applicant’s experiences with racism and the way it shaped their path to university can. The Court’s position is still clear: the consideration of a student’s race, heritage, or culture must be restricted to how that student’s background impacted “their experiences as individuals.”
The Court noted that it did not address the constitutionality of race-based admissions at military academies, “in light” of “potentially distinct interests that military academy may present.” At 2166, note 4. Students for Fair Admissions has filed a lawsuit to challenge the U.S. Military Academy’s admissions policy. This process “considers race, ethnicity, and other factors flexibly in an individual, holistic assessment of diverse candidates.” Students for Fair Admissions, Defendants Memorandum of Law page 16, United States Military Academy At West Point et Al. No. 7:23-cv-08262 (S.D.N.Y. Nov. 22, 2023). Any decision made in this case is likely to apply to all military academies who use a similar admissions policy.
Can universities pursue racial diversification in college admissions even if they are not able to achieve racial equality?
In its opinion, the Court stated that universities can “define their mission as they see fit”, leaving open the possibility for institutions to prioritize racial equality as long as the methods by which they pursue this diversity remain within constitutional limitations. Id., 2168. Id. (quoting Cummings,71 U.S. 276, 325 (1867)). Universities can legally use a range of practices to increase access and opportunities for all students.
- Increased resources for community colleges transfers.
- Implementing test optional policies.
- Early notification of institution aid to low-income students during the admissions process.
- Rural or urban high schools.
- Create nontraditional student programs to help those who enter the workforce after highschool.
- Admission to public universities for students who graduate in the top percentile.
Universities may also consider looking to other schools that have already stopped using affirmative action, such as public universities in California which have not used race as a factor in admissions since 1996.
How should I approach admissions?
The Court’s decision in SFFA may have caused confusion and concern among students, especially those who have historically been underrepresented in the nation’s colleges. If you are a student who is specifically interested in elite universities such as Harvard or UNC, then you may be wondering how the application requirements will be affected. Students should be aware of how universities can change the wording in essay questions, or what is required for their application materials such as test results or writing samples. You can also ask about the changes made to a university’s admissions policies post-SFFA. Students should contact their university’s Admissions Office to find out more. Some schools like Yale College have posted this information on their websites.
Will mentioning race in my application hurt my chances of being admitted?
No. According to the Court’s ruling, colleges and university are still allowed, under the decision, to take into account an applicant’s “discussion of how race has affected his or her own life, whether through discrimination or inspiration.” This could very well increase a student’s chances of being admitted. Some colleges have changed their essay prompts to reflect the Court’s ruling. Brown University for example asks applicants to submit a essay that reflects “where they came from,” and shares “how an aspect” of your growing-up has inspired or challenged them.
No, strictly speaking. SFFA is only applicable to college admissions.
It is important to examine the legal basis under which SFFA has been decided in order to better understand its potential impact on future litigation. The Court in SFFA based its ruling on the Equal Protection Clause. However, it also interpreted Title VI, a federal statute which applies to institutions that receive federal funds, as embodying the same prohibition. It is now a matter of whether or not similar claims could be brought successfully under other statutes. In particular, Title VII, 1964 Civil Rights Act (Title VII), which deals with employment-discrimination. Also, 42 U.S.C. SS 1981 (also known as Section 1981) is a derivative of the 1866 Civil Rights Act, which guaranteed to all Americans certain rights that were only available to whites. These included the right to contract and own property. It’s reasonable to assume that the Court will interpret the statutes the same way as it did the Equal Protection Clause of SFFA. The Court’s decision has encouraged litigants to expand their efforts beyond affirmative action programs to include more recent initiatives and programs relating to diversity, equity and inclusion (DEI).
How do companies and businesses hire employees?
Under Title VII, private sector employers are allowed to adopt race-conscious affirmative action programs “designed to eliminate conspicuous racial imbalance in traditionally segregated job categories,” so long as it does not “unnecessarily trammel the interests of white employees, neither requiring the discharge of white workers and their replacement with new black hirees, nor creating an absolute bar for advancement of white employees.” The SFFA ruling has no bearing on that precedent. Title VII allows private employers to adopt affirmative action programs that are race-conscious. These programs can be “designed to eliminate conspicuous imbalances in traditionally segregated jobs categories,” as long as they do not “unnecessarily harm the interests of the white employees.” United Steelworkers 443 U.S. 197, 209, (1979). Affirmative action programs must also be temporary and not meant to maintain racial equality, but to simply eliminate a racial imbalance. Id., at 197. The Supreme Court could reexamine affirmative action within the context of employment.
What are the hiring practices of foundations and nonprofit organizations?
The SFFA ruling did not refer to foundations or nonprofit organizations. Most philanthropic organizations, charities and nonprofits don’t receive federal funding and are therefore not subject to Title VI rulings. These private or public entities, just like corporations and businesses, may have similar concerns about litigious plaintiffs suing under Title VII to reverse discriminate in hiring practices based on race, or board diversity. Title VII allows affirmative action to be taken in certain employment decisions. It is important that organizations review all applicable federal, state and local employment laws in order to ensure compliance. The Section 1981 can also be used as a basis in litigation for contracts entered into by foundations and other nonprofits.
What are DEI programs and Initiatives?
The SFFA only applies to affirmative actions in college admissions, and has no direct impact on DEI programs or initiatives. DEI programs and projects are legal as long as they comply with anti-discrimination and employment laws. The SFFA ruling has encouraged a number of groups and individuals, as well as public corporations and private businesses to challenge the legality and effectiveness of DEI initiatives and programs across many sectors.
Edward Blum, conservative activist and founder of Students for Fair Admissions, American Alliance for Equal Rights and Students for Fair Admissions, filed American Alliance for Equal Rights V. Fearless Fund against Fearless Fund. This venture capital fund invests in businesses led by women of color. Blum alleges that Fearless Fund has violated 42 U.S.C. Section 1981 allows for suits against individuals in the private sector who racially discriminate when making and enforcing contracts. Section 1981 provides for lawsuits against individuals in the private sector that discriminate racially in making and enforcing contracts. Many other plaintiffs like the American Alliance for Equal Rights, believe grant programs giving money to nonwhite business owners discriminate white business owners. The Court of Appeals for the Eleventh Circuit, on September 30, 2023 issued a interim injunction to Fearless Fund. They found that the grant program is “racially exclusive” and “substantially” likely to violate Section 1981.
They claim that these fellowships, which are contracts between students and law firms, violate Section 1981 because they exclude white and Asian applicants. The American Alliance for Equal Rights argues that the fellowships, which are contracts between law firms and students, violate Section 1981, because eligibility criteria excluded Asian and white applicants. They also claim that the fellowships violate Section 1981, since they have opened their fellowship programs up to all applicants.
Since the SFFA ruling, DEI complaints have increased. Businesses and other organizations are likely to continue to change their policies in response. They may settle lawsuits or risk injunctions.
Useful Documents and Other FAQs
- U.S. Department of Education and U.S. Department of Justice Releases Resources for Diversity and Opportunity in Higher Education
- Urban Institute Report How To Achieve Diverse College Access in a Post Affirmative Action Environment
- Civil Rights Groups Report Racial Justice Landscape after the SFFA cases: Affirmative Action in Higher Education
- Anti-DEI Litigation Tracker: Gibson Dunn DEI Task Force Update
- U.S. Equal Employment Opportunity Commission Affirmative Action Guidelines: CM-607 Affirmative Action
- The Philanthropy Brief: Implications of the Supreme Court’s ruling on Affirmative action in Higher Education
- Council on Foundations SFFA FAQ
- NAACP Legal Defense Fund SFFA Q&A
-
Pacific Legal Foundation Racial preferences in education FAQ
Cases and Statutes
Students for Fair Admissions, Inc. V. President and Fellows at Harvard College (2023)
- Regents of the University of California V. Bakke (1998)
- Gratz v. Bollinger (2003)
- Grutter v. Bollinger (2003)
- Fisher V. University of Texas I 2013
- Fisher V. University of Texas II 2016
Title VI of Civil Rights Act of 1964
Title VII of Civil Rights Act of 1964
- Jones V. Alfred H. Mayer Company (1968)
- Johnson V. Railway Express Agency, Inc. (1997)
- Comcast Corp. V. National Association of African American-Owned Media (2010)
Students who complain about unfair admissions
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Last updated: December 12, 2023