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Publications | June 29, 2023
3 minute read

SCOTUS Strikes Down Affirmative Action

Today, in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the United States Supreme Court declared that race-based college admissions systems, otherwise known as affirmative action, are unconstitutional. At issue were the admissions systems of Harvard College and the University of North Carolina (UNC), both of which used race as a factor when making admissions decisions. In a 6-3 opinion authored by Chief Justice John Roberts, the court held that the “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.”

The issue of affirmative action stems from the Equal Protection Clause of the Fourteenth Amendment, which provides that no state shall “deny to any person ... the equal protection of the laws.” Any exceptions allowing decisions based on race must survive “strict scrutiny” meaning they must be “narrowly tailored” to “further compelling governmental interests.”

The Supreme Court previously held in Grutter v. Bollinger that race-based admissions systems in higher education could be constitutional if they were used to obtain the “educational benefits that flow from a racially diverse student body.” However, the court also noted in Grutter, which was decided in 2003, that it expected in 25 years “the use of racial preferences will no longer be necessary.”

Now, 20 years later, the court has held that Harvard and UNC can no longer justify using race in admissions decisions. The court explained that the goals of the schools’ systems, such as “training future leaders” and “promoting the robust exchange of ideas,” are too vague for the court to measure. Further, the court said that the schools failed to articulate how using race as a factor in admissions would accomplish those goals. Therefore, it held that the admissions systems fail strict scrutiny and are unconstitutional.

The Supreme Court also expressed dissatisfaction with what it called the lack of a “logical end point” for Harvard’s and UNC’s admissions programs. It rejected arguments that the programs were necessary until meaningful representation and diversity on their campuses has been achieved. The court held that the result of the programs was “outright racial balancing,” which is unconstitutional.

Importantly, the court noted 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.” Essentially, this means that higher education institutions cannot consider race itself as a factor in admissions decisions, but they can consider an applicant’s “experiences as an individual” that are “tied” to their “unique ability to contribute to the university.”

In her dissent, Justice Sonya Sotomayor said that by this opinion, the “Court stands in the way and rolls back decades of precedent and momentous progress.” She stated that the “pursuit of racial diversity will go on” and that “universities can and should continue to use all available tools to meet society’s needs for diversity in education.”

For questions about this case or any higher education concerns, please contact Jason Byrne, Allyson Terpsma, Kelsey Dame or your Warner attorney.

Warner Summer Associate John-Weston Franke contributed to this eAlert.