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June 29, 2023

Supreme Court Decides Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina et al.

On June 29, 2023, the U.S. Supreme Court decided Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 20-1199, and Students for Fair Admissions, Inc. v. University of North Carolina et al., No. 21-707, holding that the admissions programs used by Harvard College and the University of North Carolina violate the Equal Protection Clause of the Fourteenth Amendment.

In reviewing prospective students’ applications, Harvard’s admissions program assigns each application to a “first reader,” who gives the applicant a numerical score in each of six categories: academic, extracurricular, athletic, school support, personal, and overall. The “overall” category is a composite of the five other ratings; and when assigning a score to that category, a first reader can and does consider the applicant’s race. Both the subcommittee that considers all applicants from a given geography and the full admissions committee also consider each applicant’s race. Under that system, race has been a determinative factor for a significant percentage of all admitted African American and Hispanic students.

UNC’s program also assigns each admissions application to a first reader, who assigns numerical ratings in each of several categories; race is a required criterion that those readers consider in their review, and they may afford an applicant a substantial “plus” based on the applicant’s race. A committee reviews each reader’s recommendations, and the committee may consider race as part of that review.

Students for Fair Admissions challenged both admissions programs — Harvard’s as violative of Title VI of the Civil Rights Act of 1964 and UNC’s as violative of the Equal Protection Clause. The district courts in both actions upheld the programs; the First Circuit affirmed that judgment as to Harvard, and the Supreme Court granted certiorari before the Fourth Circuit could render judgment in the UNC appeal.

The Supreme Court reversed both district courts, holding that the admissions programs in question violated Title VI and the Equal Protection Clause. The Court explained that, under its precedent, a race-conscious admissions program needs to satisfy three criteria in order to be consistent with the requirements of equal protection. The program must: (1) satisfy strict scrutiny; (2) not use race as a stereotype or negative; and (3) eventually end. The Court held that both programs failed to satisfy all three criteria.

Concerning strict scrutiny, the Court held that the compelling interests advanced by the universities — training future leaders, acquiring new knowledge based on diverse outlooks, promoting a robust marketplace of ideas, and preparing engaged and productive citizens — were not sufficiently measurable to permit judicial review. The Court contrasted those justifications with other race-conscious interests found to be compelling, such as when temporary racial segregation of prisoners is used to protect the safety of those in the prison. The Court also held that the universities failed to draw a sufficient connection between those goals and the specific way in which race was considered in the admissions process. The Court stated that, although its precedents recognized a degree of deference to universities’ academic decisions, that deference was still cabined by constitutional limits.

On the second factor, the Court held that the zero-sum nature of college admissions meant that race was being used as a “negative,” because a benefit afforded to some applicants but not others necessarily advantaged the former at the latter’s expense. The Court also concluded that the programs were premised on stereotyping — i.e., the assumption that students of a particular race, because of their race, think alike.

Third, the Court observed that both programs lacked a logical end point. The Court reasoned that tying the programs’ end to the achievement of meaningful representation and diversity on college campuses was effectively just comparing the racial breakdown of the incoming class to an external metric, such as the makeup of the incoming class or the population in general. That, the Court held, was analogous to racial balancing, which is unconstitutional.

The Court noted, however, that nothing prohibits universities from considering 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 individual applicant can contribute to the university, and provided that the consideration of such essays did not operate as a mechanism for reimposing the regimes the Court held unlawful in the Harvard and UNC cases.

Chief Justice Roberts delivered the opinion of the Court, in which Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett joined. Justice Thomas filed a concurring opinion. Justice Gorsuch filed a concurring opinion, in which Justice Thomas joined. Justice Kavanaugh filed a concurring opinion. Justice Sotomayor filed a dissenting opinion, in which Justice Kagan joined, and in which Justice Jackson joined as it applies to the UNC case. Justice Jackson filed a dissenting opinion in the UNC case, in which Justices Sotomayor and Kagan joined. Justice Jackson took no part in the consideration or decision of the Harvard case.

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