U.S. Supreme Court Prohibits Admissions that Consider Race

CATEGORY: Special Bulletins
CLIENT TYPE: Private Education, Public Education
PUBLICATION: LCW Special Bulletin
DATE: Jun 29, 2023

Today, the United States Supreme Court issued its highly-anticipated decision involving race-conscious admission programs at a public and private university.  As expected, the Court determined that the admissions programs violated the United States Constitution and federal law.  This decision is likely to have a minimal impact on California public educational institutions since State law already prohibits the consideration of race in higher education and K-12 admissions.  For California private educational institutions, however, the decision is much more significant.

Background of the Cases

Students for Fair Admissions (SFFA) brought suit against Harvard College and the University of North Carolina at Chapel Hill (UNC).[1]  Specifically, SFAA claimed that both Harvard and UNC impermissibly considered race when making admission decisions.  SFAA lost in the lower courts based on prior Supreme Court precedent.  Twenty years ago, in Grutter v. Bollinger, the Court ruled that colleges could consider race as one of many factors for attaining a more diverse student body.  Justice Sandra Day O’Connor famously wrote in that opinion, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”  These two new cases gave the Court the opportunity to reconsider its earlier decision.

The Harvard and UNC Decision   

The Equal Protection Clause of the Fourteenth Amendment prohibits distinctions between individuals based on race or color, except in very limited circumstances. Previously, the Court had allowed race to be a factor, so long as it was not a determinative, when considering higher education applications.  This case overturns that precedent.

Harvard and UNC argued that race-conscious admissions should be permitted because they were necessary to achieve the “educational benefits of diversity,” such as training future leaders, acquiring new knowledge based on diverse outlooks, promoting a robust marketplace of ideas, and preparing engaged and productive citizens. The Court noted that while these are commendable goals, they not sufficiently focused or measurable to establish a compelling interest that would permit consideration of race.  As a result, the Court held the admissions process violated the Equal Protection Clause.

The Court also noted that considering race broadly for the purpose of admissions stereotyped applicants and served as a negative factor for some students, such as Asian Americans.  Considering race when making an admissions decision assumed that applicants of a certain race would think alike or provide a certain viewpoint, which the Supreme Court noted, is an overgeneralization.  Moreover, even the definitions of race were problematic.  Applicants were required to check a box with the racial category that best reflects them, but these categories were both overly-broad (e.g., South Asian and East Asian students are represented as “Asian”), and under-inclusive (e.g., there is no category at all for Middle Eastern students).

The Court expressed a deep, and long-held skepticism for any consideration of race.  It noted that there cannot be a system of justice “that picks winners and losers based on the color their skin.”  The Court said the same is true for admissions; just as an admission system that discriminated against Black and Latino applicants based on race would be impermissible, so is one that favors those same applicants based on race.

How Does this Apply to Schools in California?

As a result of voters passing Proposition 209 in 1996, the California Constitution has long prohibited public schools and other public sector agencies from considering race, sex, color, national origin, or ethnicity in education, employment, or contracting decisions.  Private schools are not subject to Proposition 209.  Likewise, the Equal Protection Clause applies to public, but not private schools.  However, all schools that take federal funds, as did Harvard, may not discriminate against student applicants based on race.  There are other laws that may extend this ruling to California private schools.  The decision is virtually certain to encourage greater scrutiny of admissions programs that consider race as a factor.

Ways to Enhance Diversity Without Using Race as a Factor

In light of today’s decision, schools should consider whether there are effective approaches to create diverse student bodies without considering race.  The Court itself, in fact, provided suggestions for lawful ways to increase diversity.  It wrote: “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.”  It warned, however, that these questions cannot be a substitute for making race-based decisions.  “[T]he student must be treated based on his or her experiences as an individual – not on the basis of race.”

Some additional options that may increase diversity without considering race include:

  • Decreasing or eliminating consideration of legacy in admission decisions.
  • Decreasing or eliminating consideration of standardized tests in admission decisions.
  • Increasing consideration of socioeconomic status in admission decisions.
  • Increasing consideration of diverse geographic communities in admission decisions.
  • Considering whether applicants speak multiple languages.
  • Allowing applicants to discuss overcoming adversity of all kinds in application essays.
  • Increasing outreach efforts to schools serving diverse communities.
  • Creating programs that allow potential applicants to experience the school and demonstrate qualities that may not be apparent on a traditional application.

Finding alternatives may be challenging and imperfect, but LCW has the expertise to help. LCW is well suited to help our clients navigate admission procedures, and already regularly advises its clients to navigate admissions to increase diversity without considering race or other protected classifications as a factor in education and employment decisions.  If you have any questions about this issue, please contact our Los Angeles, San Francisco, Fresno, San Diego, or Sacramento office.

[1] Harvard College is the undergraduate college of Harvard University.

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