On October 31, 2022, the U.S. Supreme Court heard oral arguments in two cases: Students for Fair Admissions v. University of North Carolina and Students for Fair Admissions v. President and Fellows of Harvard. The Court’s resulting decision now stands to determine the fate of race-conscious admissions in higher education.

Brief Factual Background

Holistic admissions processes are those that attempt to look at the whole applicant, evaluating their unique experiences and characteristics, rather than reducing entry criteria to a single test score or GPA. Both the University of North Carolina (UNC) and Harvard have implemented admissions policies that are “holistic” in nature. In addition to academic excellence, both universities strive for a demographically diverse student body. In an effort to cultivate that diversity, admissions policies for both institutions admittedly allow for consideration of race as one of many factors when choosing successful applicants. The mere use of race as a factor under these policies, goes to the heart of the issue.

Both cases are before the Court at the behest of Students for Fair Admissions (SFFA), a non-profit  advocacy group that represents the interests of Asian American students alleging discrimination based on race-conscious admissions policies at the UNC and Harvard. SFFA alleges that both universities have violated Title VI of the Civil Rights Act of 1964 by using race as a determining factor in admissions and for failing to use race neutral alternatives. For similar reasons, the group further alleges that as a public university, UNC is in violation of equal protection under the 14th Amendment.

Legal Background and Oral Argument Highlights

In 1954, Brown v. Board of Education of Topeka (1954) 347 U.S. 483, changed the trajectory of U.S. history by prohibiting segregation in public schools.

Parties on both sides of oral argument invoked Brown, emphasizing starkly opposite views on its legacy. On one hand, opponents of race conscious admissions emphasized Brown as a case that firmly rejected the view that racial classifications have any role to play in determining educational opportunities. On the other, proponents of diversity asserted, at oral argument that Brown prophesied education as an “engine of our democracy, a place where students could prepare for the rights and obligations of citizenship in a diverse and inclusive setting.”

Discussions also arose surrounding “strict scrutiny,” the most stringent standard of judicial review. The Court has consistently found this standard to apply when a government practice or statute contains “suspect classifications,” such as race. Strict scrutiny requires the government to show that its practice is narrowly tailored to serve a compelling interest. Despite strict scrutiny’s exacting nature, Justice Thomas questioned deference to universities in the area of diversity as a compelling interest.

In response, the Court took up the meaning and importance of diversity. The parties argued whether and to what extent diversity could be accomplished through means other than race-consciousness. Some Justices broached the topic with apparent skepticism.

In deciding the Harvard and UNC cases, the Supreme Court will decide whether to overturn its decision in Regents of University of California v. Bakke (1978) 438 U.S. 265.  There, the Court upheld educational diversity as a permissible justification for affirmative action, apart from racial quotas. In Bakke, Justice Powell clarified that although Equal Protection is frustrated when race is the determining factor in an admissions decision, “diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.”(Ibid. at p. 315.) Of course, this opinion now hangs in the balance along with several others that have accepted race as a factor in the admissions process.

It should come as no surprise then, that SFFA has called upon the Court to overrule cases such as Grutter v. Bollinger (2003) 539 U.S. 306, a landmark decision holding that University of Michigan’s Law School could consider an applicant’s race as one of many factors in its admissions process to create a diverse student body. The decision distinguished admissions policies designating “underrepresented minority” status as a “plus” factor from purely race-based admissions, so long as the decision to consider race furthered the school’s “compelling interest” in a diverse student body and was “narrowly tailored,” or in other words, just one factor in the process. Currently, Harvard and UNC both acknowledge they rely on a Grutter-like admissions practices.

SFFA Counsel, Patrick Strawbridge suggested that ‘holistic’ admissions processes and the consideration of personal admissions criteria other than race would remain legitimate in a post-Grutter world. In response, Justice Jackson voiced concerns that accounting for such characteristics to the exclusion of race might “have the potential of causing more of an equal protection problem than it’s actually solving.”

Concerns were also aired over when educational diversity would be achieved. The Grutter opinion claimed that race-conscious policies would be limited in time. (Grutter v. Bollinger, supra, 539 U.S. 306 at p. 310.) Justice Sandra Day O’Connor there opined that, “25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” (Ibid.) As a result, Justice Kavanaugh asked North Carolina’s Solicitor General, Ryan Park, whether race-conscious admissions used in an effort to promote diversity had some inevitable end or whether they might be permissible indefinitely. Park replied that “every institution in every state will differ” when it comes to the time necessary to achieve diversity.

Impact on California

Since 1996, California has prohibited race-based admissions in public universities through Proposition 209. In fact, California’s ban was referenced in oral argument on multiple occasions. Justice Kavanaugh noted that despite the ban, California has “significant numbers of minority students on campus.” Others contended that California public universities still struggle with minority enrollment and that the percentage of minority enrollment reduced significantly after Prop 209 passed. The University of California system itself briefed the Court on the matter, noting that race-neutral alternatives have been extremely costly and ineffective when it comes to achieving diversity on campus, especially with regard to recruitment of Black and Native American Students.

The fact that California has banned such admissions might signal to some that a decision against race-conscious admissions will not have as great of an impact in our state. However, California’s numerous private universities and colleges stand to be affected. Further, the impact may have a ripple effect into other areas of the law.

At present, a decision is set to issue by June.

LCW will continue to monitor the case and will provide updates as they become available.