SCOTUS Rules Race-Conscious Admission Programs Are Unconstitutional
On their second-to-last day of the 2022-2023 term, the United States Supreme Court, in a 6-3 decision, ruled in Students For Fair Admission, Inc. v. President and Fellows of Harvard College that race-conscious admission programs violate the Equal Protection Clause, and thus, are unconstitutional.
06.30.23
At issue were an admission program at Harvard University that allegedly discriminated against Asian Americans and an admission program at the University of North Carolina, Chapel Hill that allegedly gave preference to Black, Hispanic and Native American applicants over white and Asian applicants. In the majority opinion that Chief Justice John Roberts authored, the Court held that Harvard and UNC, Chapel Hill (collectively referred to as the Universities), through these policies, unlawfully discriminated against students by categorizing them by race and giving preferences to Black and Hispanic students. The Chief Justice explained, “The [Universities’] admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause,” which refers to the provision of the 14th Amendment that bars the government from discriminating on the basis of race. According to the Court, “[the Universities’] programs 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. We have never permitted admissions programs to work in that way, and we will not do so today.”
Although the Court found that such practices violated the Equal Protection Clause, the Court did not entirely prohibit schools from considering applicants’ experiences related to race, provided that the consideration is not the sole determining factor. “Nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise,” the majority opinion reads. “But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today.”
This decision is a dramatic departure from almost 45 years of precedent upholding affirmative action. Therefore, it also marks a drastic change in how institutions of higher education in the United States may now lawfully evaluate and accept applicants.
If you have any questions regarding these new changes to affirmative action with regard to the admissions process, or need any guidance to help enhance and craft your admission policies/procedures in light of the Supreme Court’s decision, please contact any Klehr Harrison Education Industry Group member.
Co-Author Lee Moylan is the Chair of the labor & employment practice group. Co-author Leonard Altieri is an associate in the Real Estate & Finance Department.