Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. __, No. 20-1199 (June 29, 2023); and Students for Fair Admissions, Inc. v. Univ. of N.C., 600 U.S. __, No. 21-707 (June 29, 2023)

The Supreme Court recently held in Students for Fair Admission v. Harvard and Students for Fair Admissions v. University of North Carolina that the race-conscious admissions policies employed by Harvard and University of North Carolina at Chapel Hill violated the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. The decision runs contrary to over forty years of precedent and the arguments and cautions presented by the AAUP in an amicus brief filed jointly with thirty-nine other higher education associations.

The decision arose from two lawsuits, involving Harvard University and University of North Carolina, that were aimed at preventing universities from considering race as one factor among many when choosing whom to admit. The cases were brought by the same organization, “Students for Fair Admissions, Inc.,” seeking to overturn over forty years of precedent permitting consideration of race as part of a holistic review of student applications. The federal district courts in both cases ruled in favor of the universities, and the First Circuit Court of Appeals also ruled in favor of Harvard, finding that the school’s race-conscious admissions program survived strict scrutiny and did not violate Title VI of the Civil Rights Act of 1964. The Supreme Court granted SFFA’s petition for certiorari in the Harvard case and consolidated it with the UNC case, which, in an unusual move, the court agreed to hear before an appeals court could even consider it.

The joint amicus brief supported the affirmative action admissions policies of Harvard and UNC. In joining the brief, the AAUP continued its many years of advocating in favor of affirmative action in higher education as amicus curiae or “a friend of the court,” emphasizing the educational value of diversity in Supreme Court cases from Regents of the University of California v. Bakke in 1978 to Fisher v. Texas in 2016 and through AAUP policy. The brief, authored by the American Council on Education, echoed the AAUP’s own emphasis on the importance of affirmative action in higher education: “Amici believe that a diverse student body is essential to important educational objectives of colleges and universities.” It recognized that “applicants’ racial or ethnic identities have affected their path to higher education and . . . their life experiences will enrich the student body and the university as a whole.” The brief also recognized that academic freedom under the “First Amendment guards the right of teachers and students ‘to inquire, to study, and to evaluate.’” Thus, “the First Amendment affords colleges and universities substantial deference on matters involving academic judgment and, as a result, safeguards the role of America’s colleges and universities as incubators for creative thought, productive dialogue, and innovative discovery. It is the pluralism of institutions across the country that makes our system of higher education the greatest in the world.”

The brief also explained the perverse results of the argument advanced by the plaintiffs, which would create a “dual-track admissions that advantage one group over another based on applicants’ racial or ethnic identity. Along one track, many applicants will present, and have considered, the full range of their background and lived experiences. On the other, applicants whose lives have been indisputably molded by their race or ethnicity must leave out a key part of their story or present it and have it ignored.” And it emphasized that “Black Americans, by no slim margin, have the most to lose from an admissions process which intentionally removes racial experience and identity from considerations for admission.”

Despite the AAUP’s efforts and settled law, in June 2023 the Republican-appointed majority on the US Supreme Court issued a 6–3 decision holding that the race-conscious admissions policies used by Harvard University and the University of North Carolina violate the Fourteenth Amendment’s Equal Protection Clause and Title VI of the Civil Rights Act of 1964. The decision overturns what had been the law for more than forty years. In its landmark 1978 ruling in Regents of the University of California v. Bakke, the Supreme Court held that the goal of achieving a diverse student body is a compelling interest that can justify college and university policies allowing for the consideration of race in admissions decisions. Twenty-five years later, in Grutter v. Bollinger, the court reaffirmed the constitutionality of race-conscious university admissions policies, emphasizing the importance of a diverse student body to achieving important educational benefits, promoting cross-racial understanding, breaking down racial stereotypes, and preparing students for participation in a diverse workforce and society. In 2013 and 2016, the court reaffirmed this holding twice more in Fisher v. University of Texas.

Although the court majority recognized that the educational benefits that flow from achieving a diverse student body are “commendable goals,” it found that Harvard and UNC failed to meet their burden of demonstrating that their admissions programs achieve compelling interests through narrowly tailored means. While scarcely acknowledging the existence of discrimination against minorities, Chief Justice John Roberts, writing for the majority, emphasized that “college admissions are zero-sum. A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.” According to the majority, the admissions policies at Harvard and UNC, as applied, gave certain applicants a decisive advantage over others on the basis of their race. Chief Justice Roberts wrote, “Eliminating racial discrimination means eliminating all of it.” He noted, however, 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.” This caveat would apparently allow candidates to at least discuss the impacts of race on their lives, as the amicus brief argued they should be permitted to do.

Justice Sonia Sotomayor wrote in her dissent that the majority’s decision rolled back “decades of precedent and momentous progress” and implemented a rule of “colorblindness as a constitutional principle in an endemically segregated society.” Justice Ketanji Brown Jackson’s dissent in the Harvard decision made a compelling case regarding the continuing existence of racism and the racial disparities it causes. She then argued that the “only way out of this morass—for all of us—is to stare at racial disparity unblinkingly, and then do what evidence and experts tell us is required to level the playing field and march forward together, collectively striving to achieve true equality for all Americans. It is no small irony that the judgment the majority hands down today will forestall the end of race-based disparities in this country, making the colorblind world the majority wistfully touts much more difficult to accomplish.”