Legal Watch: Supreme Court Takes Aim at Race-Conscious Admissions Policies

By Edward Swidriski

Federal law allows colleges and universities to consider a prospective student’s race alongside a range of other factors—such as academic merit, athletic achievement, and extracurricular activities—during the admissions process. Since its landmark 1978 decision in Regents of the University of California v. Bakke, the Supreme Court has recognized that racial diversity on campus is a compelling interest that can justify appropriately crafted affirmative action policies under the Fourteenth Amendment’s Equal Protection Clause and Title VI of the Civil Rights Act of 1964. In the years following Bakke, the court repeatedly reaffirmed that core holding and has rebuffed attacks on race-conscious admissions policies in Grutter v. Bollinger in 2003 and Fisher v. University of Texas in 2013 and 2016. This may be about to change, however. As the Supreme Court’s new 6–3 conservative majority continues to upset settled law across the constitutional landscape, it has taken up two cases that threaten long-standing efforts by institutions of higher education to promote and maintain racial diversity in their student bodies.

On October 31, 2022, the Supreme Court heard oral arguments in a pair of lawsuits brought by Students for Fair Admissions (SFFA), an organization opposed to race-conscious admissions policies. The cases involve challenges to policies at Harvard University and the University of North Carolina, which SFFA argues are impermissible because they allow an applicant’s race to be considered as part of a holistic evaluation process. In the Harvard case, SFFA has argued that the university’s admissions process unfairly disadvantages Asian American applicants, but, following a three-week trial, a federal judge rejected that claim, finding no evidence of discrimination. A federal appeals court upheld that decision. The district judge reached a similar conclusion in the UNC case. In both cases, some observers have seen a cynical attempt by SFFA to pit minority groups against one another in order to undo a policy that furthers racial equity.

The fact that the Supreme Court took up these cases, instead of letting the lower court decisions stand, indicates that the Republican-appointed majority intends to change the law that governs affirmative action policies. In just the last decade, the court has twice affirmed that diversity is a “compelling governmental interest” that permits the consideration of race as a factor for admission to institutions of higher education. But now that Justices Anthony Kennedy and Ruth Bader Ginsburg—two of the key votes in the Fisher cases—are no longer on the court, all bets are off. In several recent decisions, the conservative majority has swept aside decades-old precedents, as occurred last term in Dobbs v. Jackson Women’s Health Organization, which overturned the right to obtain an abortion. What remains unclear is not whether the new majority will invalidate most, if not all, race-conscious admissions policies, but how far it will go in doing so and how it will seek to justify its ruling. That problem poses a particularly acute dilemma for the court’s conservatives because one of their most cherished methodologies—originalism—supports upholding the constitutionality of affirmative action policies. As Justice Ketanji Brown Jackson noted during oral argument in a different case this term, the authors of the Equal Protection Clause viewed its protections in a race-conscious way and did not believe that it required race neutrality. In fact, the same Congress that wrote the Fourteenth Amendment rejected language mandating color-blindness and adopted race-conscious laws giving special benefits to African Americans in education and land distribution. If accepted by the Supreme Court, SFFA’s position would run counter to the original intent of the Fourteenth Amendment.

Last August, the AAUP joined an amicus brief filed with the Supreme Court in support of Harvard and UNC. In addition to outlining how race-conscious admissions policies further the educational objectives of colleges and universities, the brief stresses the importance of a racially diverse student body to promoting and preserving academic freedom. The contours of any ruling will need to be carefully parsed once a decision is handed down, but if the Supreme Court acts as expected, it will fall to the higher education community to develop new and innovative ways of preserving the many social and educational gains that race-conscious admissions policies have made possible.

Edward Swidriski is assistant counsel at the AAUP.