Supreme Court Outlaws Use of Race in Higher Education Admissions; Serves as a Reminder that Employers Can't Use it Either

Reversing decades-old precedent on the use of race in higher education admissions, the Supreme Court on Thursday held that the admissions programs at Harvard and the University of North Carolina violate the Equal Protection Clause of the Fourteenth Amendment, effectively outlawing the consideration of race in admissions decisions.

Both schools' admissions processes used race as one of the final factors in determining which students were offered admission to the schools. At Harvard, the focus is on avoiding a "dramatic drop-off" in minority admissions from one year to the next. At UNC, admissions application reviewers are required to consider applicants' race in scoring the applications for purposes of recommending admission, and the final selection committee is permitted to use race in making final admissions decisions.  

In a 6-3 opinion authored by Chief Justice John Roberts, the Supreme Court held these admissions programs failed to meet the requirements of strict scrutiny, the constitutional test for race-based distinctions. First, the schools' goals, which could be collectively and broadly described as enhancing the educational experience for all, were "standardless" in that the schools could not show that a particular mix of students met the goal when other mixes did not. Second, the schools could not show a connection between their goals and the tactics of the admissions programs. For example, the schools' use of common racial categories in admissions such as "Asian," "Native Hawaiian or Pacific Islander," "Hispanic," "White," "African-American," and "Native American" were overbroad (why "Asian" and not "East Asian" or "South Asian"), undefined (who is "Hispanic?"), or underinclusive (which category do students from the Middle East fall into?). The admissions programs violated the Constitution in that they were not "measured and concrete enough" to justify race-based decision making.

The Court also found that the admissions programs violated the Constitution's prohibition on using race as a "negative" or a "stereotype." At Harvard, for example, Harvard's admissions program resulted in a 11.1% decrease in the number of Asian-American students being admitted to Harvard. At Harvard, those candidates who were members of minority racial classes enjoyed an advantage, just as candidates with high grades and test scores enjoyed an advantage over those with low grades and test scores. "College Admissions are zero-sum," Chief Justice Roberts wrote. "A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter." The Court also found that the admissions programs impermissibly used race as a stereotype, assuming that a student had something different to offer or embraced different viewpoints simply because that student was a member of a racial minority.

Finally, the admissions programs also lacked a "logical end point," required under the Court's previous Equal Protection cases for programs aimed at remedying racial discrimination. The Court faulted the admissions programs' emphasis on the percentage representation of different racial groups, noting that "outright racial balancing is patently unconstitutional," and the focus of both schools on admissions percentages means race will always be relevant and therefore always a factor. Put another way, the Court had no meaningful way to measure or determine when the goals of the admissions programs would be met, and therefore the programs had no "logical end point."

The Court's decision is undoubtedly controversial and divisive -- the syllabus, opinion, concurrences, and dissents came in at a whopping 237 pages -- and it is limited to the use of race in higher education admissions. However, the case serves as a reminder that the type of affirmative action reflected in universities' admissions practices is, in all but the rarest of cases, flatly prohibited in employment by Title VII. Companies pursuing the laudable goal of increased diversity, equity, and inclusion in the workplace must remember that no matter how well-intentioned and meaningful DE&I initiatives can be, tools like racial quotas or hiring preferences are illegal. Employers must make sure that they utilize methods of promoting DE&I that do not violate Title VII or other employment laws and thereby increase the risk of litigation for the company.

The case is Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 20-1199.