U.S. Supreme Court Changes Landscape on Affirmative Action in College Admissions

Last week, the United States Supreme Court issued a landmark decision that dramatically alters the admissions landscape for colleges and universities.  In a nutshell, the Court’s ruling in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina effectively prohibits both public institutions of higher education and private institutions receiving federal funding from relying on applicants’ race or national origin in the admissions process.

For the past several decades, colleges and universities have been allowed to consider race or ethnicity as one factor among many when making admissions decisions. In other words, race or ethnicity could be considered as a “plus” factor in a holistic admissions process—provided other legal requirements were met.

The Supreme Court reviewed the admissions processes at Harvard College and the University of North Carolina, both of which considered an applicant’s race, among other factors, when deciding whether to offer admission, and both of which monitored the projected racial makeup of the incoming class. In 6‑3 and 6‑2 decisions,[1] the Court concluded that both institutions’ admissions practices violated Title VI of the Civil Rights Act (which prohibits recipients of federal financial assistance from discriminating based on race or national origin) and the Equal Protection Clause of the U.S. Constitution. As a guiding principle, the Court noted that equal protection’s “core purpose” is to eliminate racial classifications by government.  Emphasizing that this principle must be universal in its application, the Court announced: “Eliminating racial discrimination means eliminating all of it.” The Court further observed that discrimination violating the Equal Protection Clause also would violate Title VI.

In legal parlance, the Court concluded that Harvard’s and UNC’s programs failed to meet “strict scrutiny,” the long-established constitutional standard for evaluating racial classifications. In the Court’s view, the interests that these universities had put forth to justify their race-conscious admissions practices—including training future leaders, promoting diverse outlooks, and preparing engaged and productive citizens for an increasingly pluralistic society—“though plainly worthy,” were “inescapably imponderable” and not subject to reliable measurement. Among other things, the Court also found that the universities’ admissions processes improperly assumed that applicants sharing certain traits may think alike; used race in a way that discriminated against groups that did not receive the preference; and appeared to lack any meaningful ending point.

Despite reaching this conclusion, the Court stressed that its opinion should not “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.” Thus, according to the Court, institutions may validly take into account, for example, that a student (1) “overcame racial discrimination” by virtue of that student’s courage and determination, or (2) possessed a “heritage or culture [that] motivated him or her to assume a leadership role,” as long as these narrative features are “tied to that student’s unique ability to contribute to the university.” But the Court cautioned that “universities may not simply establish through application essays or other means the regime we hold unlawful today.”

These rulings will have far-reaching implications for admissions processes and practices at colleges and universities. As institutions of higher education digest this decision, they will need to assess its impact on their entire admissions processes, from application questions to scoring rubrics to other internal procedures. In particular, schools should:

• Ensure that a student’s race, qua race, is not used as a factor in the admissions process;
• Consider revising existing essays or adding new essays to the application to elicit information about each candidate’s unique qualifications, attributes, and ability to contribute to campus;
• Review whether and how the admissions office measures and monitors the racial composition of the admitted class, to assess that approach’s continued permissibility;
• Consider the extent to which Court’s decision may impact other areas related to admission, such as the awarding of financial aid and scholarships, or affinity‑based activities; and
• Consider how any diversity-related mission or goals can be pursued in a manner that complies with the new legal landscape.

To assist schools preparing for the next application cycle, the U.S. Departments of Education and Justice have announced that, in the coming months, they will provide resources regarding lawful admissions practices and administering programs to support students from underserved communities.   We will provide updates on that guidance and other developments in this area.

Please reach out to Eric Del Pozo, Peter J. Murphy or Dori Pagé Antonettiwith questions about this decision’s consequences on admissions practices or diversity efforts.