The Mission Continues
Despite the Supreme Court ruling on race-conscious admissions, higher ed must still pursue diversity and inclusion
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In October 2022, the United States Supreme Court returned to the
issue of race-conscious college and university admissions policies for
the fourth time in the past half-century as it heard arguments for what
would become two of the most closely watched cases for the higher
education community, and indeed for the entire nation, 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.
(the SFA cases). In a joint decision in June 2023, the court ruled that
the use of race in admissions processes, even as a single factor among
many, is illegal. To do so, the court held, violates the Equal
Protection Clause of the Fourteenth Amendment when the actor is a public
institution like the University of North Carolina (UNC) and Title VI of
the Civil Rights Act of 1964 when the actor is a private institution
that accepts federal funding, like Harvard.
The result has effectively been to bar race-conscious admissions at more than 3,000 colleges and universities, which, in total, serve roughly 17.5 million graduate and undergraduate students of the roughly 18 million students in American universities. Or, put differently, approximately 97.5 percent of all students in the United States, excluding only those at military academies and at private universities that do not receive federal funding. The impact of the SFA cases has been immediate and dramatic, causing institutions to reevaluate their admissions processes and other parts of their programs, such as financial aid or academic support, where race has been taken into account. The full ramifications are yet to be seen, and much will be learned over this coming academic year and the years that follow.
So how did we get here, and just what is the scope of the court’s ruling? More critically, what does this decision mean for colleges and universities seeking to build and maintain diverse and inclusive communities? What does it mean for academic freedom? And what does it tell us about judicial understanding of race in American life?
Under both the Harvard and UNC prior admissions policies, an individual’s race might have been a factor, but it was never the determining factor, in deciding whether to admit an applicant. Under Harvard’s process, race was a “determinative tip” for a significant percentage of Black and Hispanic applicants. UNC had a similar process, during which application readers were allowed to consider applicants’ race and give them a substantial “plus” depending on their race.
In Regents of the University of California v. Bakke (1978), the court first addressed the distinction between race as a factor and not the factor in ruling on race-conscious admissions. Bakke concerned a formal racial quota system for admitting students to the medical school at the University of California, Davis. The pivotal opinion written by Justice Lewis Powell expressed the court’s holding. Although writing only for himself, he was joined by four justices in striking down the quota system and four different justices in upholding a narrower form of race-conscious university admissions. Those who joined Powell in rejecting the quota system would have left the broader issue of admissions policies to another day. Those who joined him in accepting some level of race-conscious admissions would have upheld even quotas because, as Justice William Brennan wrote, “government may take race into account when it acts not to demean or insult any racial group, but to remedy disadvantages cast on minorities by past racial prejudice.”
The rule that emerged from Powell’s opinion in Bakke prohibited the use of racial quotas but permitted race to be used as one factor in admissions by universities. Powell’s opinion also recognized that colleges and universities had a legitimate, and indeed appropriate, interest in the diversity of their student body. “The atmosphere of ‘speculation, experiment, and creation’—so essential to the quality of higher education—is widely believed to be promoted by a diverse student body,” Powell wrote. In addition, Powell formally embraced the “four essential freedoms of the university,” hitherto expressed only in a concurring opinion by Justice Felix Frankfurter in Sweezy v. New Hampshire (1957). Frankfurter was a likely proponent of academic freedom, having come to the court directly from his position as a professor at Harvard Law School. In an earlier case, he and another academic turned justice, William O. Douglas, the youngest tenured professor in the history of Yale Law School, authored the memorable phrase that teachers are the “priests of our democracy.”
In Sweezy, the court threw out the New Hampshire state attorney general’s effort, in his investigation of subversive activities, to interrogate Professor Paul Sweezy about lectures he gave at the University of New Hampshire on socialism. The majority opinion did not expressly rely on academic freedom grounds. But Frankfurter, in his concurring opinion, did, focusing on the right of university professors to determine the content of their lectures.
Drawing from a statement by scholars at the University of Cape Town and the University of the Witwatersrand in South Africa, Frankfurter articulated the four essential freedoms, writing that it is for the university to determine for itself on academic grounds
- who may teach;
- what may be taught;
- how it shall be taught; and
- who may be admitted to study.
Twenty-five years after Bakke, the court once again considered the issue of race-conscious admissions in Grutter v. Bollinger (2003). In an opinion by Justice Sandra Day O’Conner, a majority of the court upheld the University of Michigan Law School’s admissions policy, which considered race as a factor, but not the determining factor, in its process. (In Gratz v. Bollinger, decided the same day, a majority of the court struck down the plan used by the University of Michigan for undergraduate admissions, finding its grant of extra points for race per se to be tantamount to an impermissible quota system.) Grutter concluded that given that student body diversity was a compelling interest of the university and, further, because the limited use of race was narrowly tailored to serve this interest, the plan was constitutional. Moreover, the court observed that “our holding today is in keeping with our tradition of giving a degree of deference to a university’s academic decisions, within constitutionally prescribed limits.”
The doctrine established in Bakke, refined in Grutter, and somewhat narrowed in two later cases concerning the University of Texas’ admissions policy—Fisher v. University of Texas (2013) and Fisher v. University of Texas (2016)—governed university admissions practices with respect to race-conscious policies for nearly fifty years until the court’s June 2023 decision in the SFA cases. It was thus not surprising that Harvard’s and UNC’s admissions policies, when challenged, were upheld by lower courts, as neither looked to race as a determining factor for admissions. In the SFA decision by Chief Justice John Roberts for six justices, the Supreme Court reversed these lower courts and upended existing principles. Roberts reached back before Bakke to the celebrated decision of Brown v. Board of Education (1954), which outlawed school racial segregation as unconstitutional, noting that Brown reflected the “core purpose” of the Fourteenth Amendment’s Equal Protection Clause to do away with “all governmentally imposed discrimination based on race.” The court majorities in Bakke, Grutter, and Fisher II were obviously aware of the holding in Brown. But they had read Brown to leave room for race-conscious policies to address past discrimination or achieve compelling educational goals such as a diverse student body. Robert’s stricter reading of Brown, on the other hand, left no such room.
Interestingly, the majority opinion in SFA did not expressly overrule Grutter. Instead, Roberts read Grutter
and other race-conscious admissions cases to create three criteria that
must be satisfied for race-based admissions programs, all of which UNC
and Harvard failed to meet and none of which, it seems, any program
could meet:
- the program must comply with strict scrutiny;
- it can never use race as a negative stereotype; and
- at some point, the program must end.
Although all three criteria seem sensible on their face, in practice,
their application will render the mission of race-conscious admissions
impossible. Strict scrutiny, which requires that the law or regulation
under review is completely necessary (what the court calls “narrowly
tailored”) to achieve a compelling state interest, had been required in Grutter and Fisher and, on very similar evidence to that presented by Harvard and UNC, was found to have been satisfied. But in SFA,
for the first time, the court found that compelling state interests in
diversity—such as training leaders, expanding knowledge from diverse
perspectives, and creating a robust marketplace of ideas—were too vague
and unmeasurable for the purposes of meaningful judicial review. The
court also held that no meaningful connection existed between the means
the universities had employed and the goals they pursued. Specifically,
the racial categories used by both schools were found to be overbroad
(grouping together all Asian ethnicities into one category, for
instance), arbitrary or undefined (using the category “Hispanic,” for
example), or underinclusive (failing to account for different Middle
Eastern countries, for one). For these reasons, without saying as much,
the court in fact overruled the doctrine articulated in Grutter and Fisher, and in turn established insurmountable hurdles for satisfying strict scrutiny.
Similarly, the court’s finding that UNC and Harvard were using race as a negative stereotype led to a ruling that precludes race-conscious decisions of any kind. Whereas much admissions work involves some level of stereotyping—schools seek, for example, to have representation from as many states as possible without knowing for certain that an individual student from one state “represents” that state per se—the court found that race-conscious admissions policies engage “in the offensive and demeaning assumption that students of a particular race, because of their race, think alike.” Moreover, the court’s holding reflects the view that college admissions is a zero-sum game in which a benefit provided to some applicants will necessarily disadvantage others, a notion that most admissions professionals would dispute. Instead, compiling an entering class is a nuanced and complex exercise in which candidates receive varying levels of advantages by virtue of admissions officers applying a range of factors in an effort to seek a diverse class.
Finally, the court expressed a concern that Harvard and UNC did not
provide benchmarks to measure when “meaningful representation and
diversity are achieved on college campuses,” that is, a logical endpoint
for the use of race-conscious admissions. Identifying such an endpoint
(a requirement likely prompted by O’Connor’s aspiration expressed in Grutter
that “we expect that 25 years from now, the use of racial preferences
will no longer be necessary to further the interest approved today”) is
difficult to do with precision and consequently makes for an
unattainable constitutional requirement.
Grutter, although not formally overruled, was thus interpreted in a manner that rendered legal race-conscious admissions policies impossible to achieve. Justice Clarence Thomas in his concurrence in SFA had the courage of the majority’s convictions when he wrote that “Grutter is, for all intents and purposes, overruled.”
Since the decision in SFA came down, colleges and universities have been reevaluating their admissions practices and, where necessary, redesigning them. In August 2023, the US departments of Education and Justice offered joint guidance “to help colleges and universities understand the Supreme Court’s decision as they continue to pursue campuses that are racially diverse and that include students with a range of viewpoints, talents, backgrounds, and experiences.” Many of the recommendations center on a door left open in the court’s majority opinion.
Near the end of the opinion, Roberts wrote that “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.” Significantly, this
language appears to have been prompted by a question Justice Ketanji
Brown Jackson asked the SFA plaintiffs, which highlighted the irony that, under the plaintiff’s logic, a legacy student who had in fact benefited from discrimination could mention his familial history, but a student whose ancestors had been excluded
because of discrimination could not. In the majority opinion, Roberts
made clear that the latter student would still be able to describe how
race had affected his life in a way that would be relevant to his
application for admission to the university. The departments of
Education and Justice’s guidance emphasizes that colleges and
universities may thus “continue to embrace appropriate considerations
through holistic application-review processes and (for example) provide
opportunities to assess how applicants’ individual backgrounds and
attributes—including those related to their race, experiences of racial
discrimination, or the racial composition of their neighborhoods and
schools—position them to contribute to campus in unique ways.”
The potential breadth of this consideration of race insofar as it has affected an applicant’s life remains to be seen. At the least, it seems likely that the legal permissibility of this kind of consideration of race will allow colleges and universities to encourage students to discuss race in their application essays. To be sure, any consideration of race has the potential to expose a college or university to legal liability in a post-SFA world. It would be understandable if some institutions chose to avoid utilizing even this consideration of race in their admissions decisions. Nevertheless, it is critical that those in higher education push hard against the SFA decision’s boundaries by using this approach that the court itself articulated. Although no college or university wants to be involved in future litigation on such issues, the laws governing diversity-seeking admissions practices will only evolve over time if institutions do not engage in excessive caution but rather are willing to drive change by using legally permissible and educationally desirable practices.
One by-product of Powell’s approach in Bakke was that an important piece of the Supreme Court’s doctrine of constitutional academic freedom came out of its race-conscious admissions jurisprudence. In SFA, one argument offered in support of the existing regime recognizing race-conscious admissions practices was that of academic freedom in general, and the right of the university to compose a given class in the way it sees fit to accomplish its education mission in particular. This argument was raised, among other places, in an amicus brief filed by the American Council on Education and joined by many associations of colleges, universities, educators, trustees, and other representatives of several thousand institutions of higher education in the United States (including the American Association of Colleges and Universities).
The court in SFA largely left in place the general constitutional foundation of academic freedom—what the court in Keyishian v. Board of Regents (1967) termed “a special concern of the First Amendment.” In SFA, the court questioned neither the existence nor continued vitality of a doctrine embedded in the Constitution safeguarding academic freedom. Citing the Grutter decision, Roberts in SFA wrote that “it is true that our cases have recognized a ‘tradition of giving a degree of deference to a university’s academic decisions.’ ” “But,” he continued, “we have been unmistakably clear that any deference must exist ‘within constitutionally prescribed limits’ . . . and that ‘deference does not imply abandonment or abdication of judicial review.’ . . . Universities may define their missions as they see fit. The Constitution defines ours.”
SFA may be read largely to leave academic freedom doctrine intact. Put somewhat differently, the four essential freedoms of the university—including the freedom to compose a class in accordance with the mission of the institution—which the Supreme Court wrote into law in Bakke, remain in place, subject only to the limitations imposed by the Constitution. It is plausible that these limitations will only be implicated when university actions are deemed to discriminate in violation of the Fourteenth Amendment’s guarantee of equal protection of the law, as the court found in SFA. Otherwise, colleges and universities ought to be legally protected in their efforts to achieve their stated missions.
A full investigation of what SFA teaches about the role of race in our legal system is beyond the scope of this discussion. But it is worth considering a particularly sharp exchange during the SFA proceedings between the court’s two African American justices, Thomas and Jackson, which highlighted their fundamentally different views of race and the law.
Thomas joined Roberts’ majority opinion but also authored a lengthy concurring opinion to “offer an originalist defense of the colorblind Constitution . . . and to clarify that all forms of discrimination based on race—including so-called affirmative action—are prohibited under the Constitution.” To Thomas, the Fourteenth Amendment was designed to render race invisible to the law, barring any legal distinctions on the basis of race, even those intended, as Brennan noted in his Bakke concurrence, “not to demean or insult any racial group, but to remedy disadvantages cast on minorities by past racial prejudice.”
In contrast, Jackson took particular issue with the concept of the “colorblind Constitution” in her dissent, writing that “deeming race irrelevant in law does not make it so in life.” To Jackson, the goal of the Fourteenth Amendment is to provide for a more equitable society. The achievement of this goal requires race-consciousness because the effects of past racism continue to be felt in the present and on into the future. The “lengthy history of state-sponsored race-based preferences in America,” Jackson wrote, causes the “well-documented ‘intergenerational transmission of inequality’ that still plagues our citizenry.” Secretary of Education Miguel Cardona expressed a similar sentiment when he reflected on the SFA ruling, pointedly stating, “These inequities add up. Anyone who tells you that the discrimination of the past doesn’t impact educational opportunities today is either lying to you or living under a rock.”
Colleges and universities, as Roberts stated in the SFA majority opinion, have their missions. For many, if not most, American institutions of higher learning, these missions include assembling a student body that is diverse and inclusive. As Powell wrote in his opinion in Bakke, “the atmosphere of ‘speculation, experiment, and creation’—so essential to the quality of higher education—is widely believed to be promoted by a diverse student body.” Institutions will no doubt continue to pursue this goal. The court’s decision in SFA, while making it harder, has provided a road map for a possible way forward. It is vitally important to the overall mission of American higher education that our colleges and universities continue to pursue this goal.
The author expresses his appreciation to Megan Dougherty, Georgetown University Law Center class of 2024, for her research and editorial assistance with this article.
Illustrations by Daniel Stolle
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