On June 29, 2023, the U.S. Supreme Court issued its decision in SFFA v. Harvard and SFFA v. University of North Carolina (UNC) and ruled in that the race-conscious admissions policies of Harvard and the University of North Carolina (UNC) are unconstitutional. The Court found that Harvard and the University of North Carolina’s affirmative action programs violate the Equal Protection Clause of the Fourteenth Amendment. This devastating decision overrules 45 years of precedent established in prior Supreme Court decisions, including Regents of the University of California v. Bakke, Grutter v. Bollinger, and Fisher v. University of Texas. However, the Court’s ruling still allows colleges to consider how race has affected a student’s life and their ability to contribute to the educational institution.
On October 31, 2022, the U.S. Supreme Court heard oral arguments in the cases Students for Fair Admissions (SFFA) v. Harvard and Students for Fair Admissions (SFFA) v. University of North Carolina (UNC), two landmark cases involving affirmative action. SFFA, an organization created by Edward Blum, filed the lawsuits in 2014 as part of a relentless crusade to overturn 40+ years of precedent and eliminate the consideration of race in college admissions. Blum is also responsible for the litigation in Shelby County v. Holder.
LDF long represented twenty-five Harvard student and alumni organizations of thousands of Black, Latinx, Asian American, Native American, and white students and alumni as amici curiae, or “friends of the court,” in the Harvard lawsuit. You can find SFFA v. Harvard briefs and case documents here. LDF presented members of its client organizations as witnesses at the 2018 trial and submitted declarations, other evidence, briefs and oral argument on their behalf. LDF filed an amicus brief in the Supreme Court of the United States in SFFA v. UNC on behalf of LDF and the NAACP in support of UNC’s race-conscious admissions process.
In SFFA v. Harvard and SFFA v. University of North Carolina, SFFA asked the Court to change the law to prohibit the consideration of race in college admissions. SFFA also alleged that both Harvard and UNC failed to comply with existing laws.
The Harvard case is the first challenge to a race-conscious admissions policy involving a private college to reach the Supreme Court. In the lawsuit, SFFA alleges that, as a federally funded program, Harvard’s consideration of race in admissions, as one of many factors, violated Title VI of the Civil Rights Act of 1964. Notably, for almost 85% of its nearly 400-year history, Harvard systematically excluded Black, Latinx, Indigenous, Asian American, and other students of color.
UNC is considered the oldest public university in the country. SFFA claims that UNC’s race-conscious admissions policy violated the 14th Amendment to the U.S. Constitution. UNC has a long history of racial segregation, only admitting its first Black students in 1951 to comply with a federal court order — more than 160 years after its founding.
Race-conscious admissions policies allow colleges and educational institutions to consider an applicant’s race as one of the many factors in the admissions process. Due to pervasive inequalities in access to educational opportunities in PK-12 education, race-conscious admissions are necessary to enable universities to identify talented students from all communities and assemble a diverse student body in order to reap the educational benefits of diversity. Holistic admissions provide greater context to the traditional admissions considerations like test scores, grades, and advanced coursework, which is important since the opportunity to excel on these measures is affected by race and privilege. Indeed, due to pervasive racial inequality in primary and secondary education, as well as racial bias in standardized testing, traditional indicia of merit under-identify many talented students of color for college admission. Moreover, race and ethnic identity have shaped the lives and perspectives of many students of color. Overcoming racial discrimination can be a big part of their lives, and a core part of who they are.
The Supreme Court struck down Harvard’s and UNC’s race-conscious admissions policies as unconstitutional, reasoning that the policies, “however well-intentioned and implemented in good faith,” failed to pass constitutional muster under strict scrutiny because they were not narrowly tailored to a compelling government interest. In so holding, the Court undermined almost five decades of precedent by applying a radical and much more stringent version of strict scrutiny than it had applied in the past.
As recently as 2016, the Court held that the pursuit of the educational benefits of diversity was a compelling government interest that could justify the use of race in college admissions. While the Court’s ruling in the Harvard and UNC cases did not overrule that precedent, it nevertheless found that Harvard’s and UNC’s articulated interests in the educational benefits of diversity, though “plainly worthy” “commendable goals” — and indistinguishable from the interest repeatedly found to be compelling in prior cases — were insufficiently coherent and measurable to justify giving a tip to an applicant based merely on how they checked the box for race (even if that tip was one of dozens considered). The Court also criticized the means used to achieve the educational benefits of diversity, noting that racial categories like “Asian American” or “Hispanic” were imprecise and arbitrary.
The Court has repeatedly rejected the idea that remedying societal discrimination is a compelling government interest that can justify race-based state action. The Court continues this view in the Harvard and UNC cases, considering the interest in remedying societal racial discrimination to be “‘an amorphous concept of injury that may be ageless in its reach into the past’” and that threatens to “open the door to competing claims for ‘remedial relief’ for every disadvantaged group” based on “inherently unmeasurable claims of past wrongs” that “cannot ‘justify a [racial] classification that imposes disadvantages upon persons . . . who bear no responsibility for whatever harm the beneficiaries of the [race-based] admissions program are thought to have suffered.’” The Court made clear, however, that it continues to allow race-based efforts to “remediat[e] specific, identified instances of past discrimination that violated the Constitution or a statute.”
Yes, under certain circumstances. The Court declared that “nothing in [its] 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.” Indeed, the Court recognizes that what applicants share about their experiences with race could indicate “courage and determination,” or “that student’s unique ability to contribute to the university.” According to the Court, “the student must be treated based on his or her experiences as an individual — not on the basis of race.”
Thus, despite the constraints of the Supreme Court’s ruling, colleges and universities may still consider students’ experiences with race and how those experiences shape who they are, their character, and how they might contribute to the university community. The Supreme Court’s decision demands an unequivocal response from all of us — to welcome race as worth acknowledging, not dismissing, in our institutions and to embrace students in their full identities. All students deserve the freedom and opportunity to have their full selves and lived experiences considered when seeking admission to institutions of higher learning.
There is no question that the Supreme Court’s decision is an unconscionable blow to fairness in education at a time when efforts to advance educational opportunities for students of color remain acutely necessary but are nevertheless under attack across the country. Yet, despite how alarming this decision is, it is important to know exactly what the Supreme Court did and did not decide in these cases.
The Court’s decision is limited to the consideration of race, as a tip, in college admissions as conducted by Harvard and UNC for the pursuit of the educational benefits of diversity. The Court explicitly noted that its ruling does not address the legality of race-conscious admissions policies at military academies, which may have “potentially distinct interests.”
The Court’s decision also has no direct impact on outreach; recruitment; affinity groups; employment; contracting; race-neutral policies governing K-12 selective admissions programs; diversity, equity, inclusion, and accessibility (DEIA) programs; environmental, social, and governance (ESG) goals; or Critical Race Theory. In fact, these efforts are even more important after the Court’s ruling.
The following statement from the Chair of the Equal Employment Opportunity Commission confirms that this decision does not address workplace DEIA programs:
“[T]he decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina does not address employer efforts to foster diverse and inclusive workforces or to engage the talents of all qualified workers, regardless of their background. It remains lawful for employers to implement diversity, equity, inclusion, and accessibility programs that seek to ensure workers of all backgrounds are afforded equal opportunity in the workplace.”
In its decision in the Harvard and UNC cases, the Court distorted the legacy of Brown v. Board of Education, which rejected the separate but equal doctrine and mandated the elimination of state-sponsored racial segregation in our educational system. Brown held that society must not ignore racial inequality and can take necessary measures to address it, including through race-conscious means.
Brown advanced racial equity and expanded access to educational settings from which Black students had long been excluded under a racial caste system. It is ahistorical for the Court to cite this historic decision to justify dismantling programs that expand educational opportunity for Black students and other students of color. As Justice Sotomayor wrote in her dissent, quoting LDF’s brief:
“If there was a Member of this Court who understood the Brown litigation, it was Justice Thurgood Marshall, who ‘led the litigation campaign’ to dismantle segregation as a civil rights lawyer and ‘rejected the hollow, race-ignorant conception of equal protection’ endorsed by the Court’s ruling today … The Court’s recharacterization of Brown is nothing but revisionist history and an affront to the legendary life of Justice Marshall, a great jurist who was a champion of true equal opportunity, not rhetorical flourishes about colorblindness.”
Unfortunately, many students of color do not have an equal opportunity to amass the credentials that colleges prefer when selecting applicants for admission. These inequalities — and policies that use indicia of merit affected by these inequalities —artificially depress the admissions rates of Black, Latinx, Native American, and other underrepresented students. For example, as of the 2020-2021 school year, Black students were 13% of U.S. high school graduates, but only 5.63% of students enrolled in large, selective public colleges, while white students were 50% of U.S. high school graduates and 56% of students enrolled in large, selective public colleges.
Decision makers have a continuing obligation under federal and state anti-discrimination laws and the U.S. Constitution to provide equal opportunity to all applicants. It is now even more imperative that colleges and universities identify and dismantle barriers to opportunity that may unfairly disadvantage hardworking students of color in their quest for college admission.
A broad cross-section of American society, including military leaders, major corporations, small business owners, educators, students, and individuals from all backgrounds support advancing equal opportunity in education through race-conscious admissions. A May 2023 AP-NORC poll found most respondents (63%) do not think the Supreme Court should prohibit the consideration of race and ethnicity in college admissions. According to the 2022 Asian American Voter Survey, 69% of Asian American voters support better access to higher education for women and all communities of color. A Sept. 2022 nationwide poll found that 70% of respondents agree we need racial diversity, in addition to diversity of students’ economic backgrounds, to achieve true equality. Furthermore, an October 2022 Washington Post-Schar School poll found that 64% of adults say programs designed to increase the racial diversity of students are a good thing.
Students of all races benefit from affirmative action in higher education. Race-conscious policies have played an important role in ensuring that all people of color, including Black, Latinx, Indigenous, Asian American, and Pacific Islander students, have an opportunity to go to selective colleges and assume leadership roles in the workplace and in all sectors of our society.
Moreover, the ability to relate to people of different racial and ethnic backgrounds is an indispensable skill for job candidates. Students of all racial backgrounds benefit from racially diverse learning environments and are better equipped to succeed in today’s workplaces and serve today’s clientele. Research shows that diverse learning environments help all students build skills associated with academic success, including critical thinking, problem-solving ability, student satisfaction and motivation, general knowledge, and intellectual self-confidence. In addition, cross-racial interactions can reduce prejudice and stereotypes, enhance empathy, and open minds.
Race-conscious admissions policies and diversity in higher education have a major impact beyond the classroom. Diverse learning environments enrich the college experience for everyone and better prepare students of all backgrounds for success in the multiracial workplace and the society we live in. There are direct economic benefits to a well-educated and diverse workforce, and race-conscious admissions programs in higher education make that possible. As noted in approximately 60 amicus briefs filed in support of race-conscious admissions, having a pipeline of diverse graduates is an economic, medical, military, and scientific imperative. Diversity in higher education is vital to assembling a diverse workforce to serve our communities.
As a nation, we cannot afford to forgo the benefits of the talents and gifts of Black, Latinx, Indigenous, Asian American, and Pacific Islander students. Our future leaders must have the opportunity to fulfill their potential through equal access to a higher education in a racially diverse learning environment that will equip them to thrive in a multi-racial democracy and an increasingly global economy. Our national security, our ability to compete in a global economy and in scientific and technological innovation, and the health of our multi-racial democracy depend on producing leaders and a well-trained workforce capable of navigating and thriving in a racially diverse society.
According to leading American companies, employing a racially diverse workforce gives them a competitive advantage in our increasingly global economy. This is why 82 corporations and businesses submitted briefs to the Supreme Court in support of upholding affirmative action and equal access to higher education. As Intel explained to Congress in 2019, “Improving ethnic and gender diversity in the U.S. technology workforce represents an economic opportunity that could create $470B to $570B in new value for the technology industry and could add 1.2%-1.6% to the national GDP.”
No. Unfortunately, there are too few Black or Latinx applicants for the giving of a tip for race to make a difference in anyone else’s chances of admission. In fact, even if every Black or Latinx applicant were removed from Harvard’s applicant pool, the admission rate for the remaining applicants (primarily Asian American or white) would increase by only one percentage point (from 5.84% to 6.84%). S. Hughes et al., In contrast, 43% of white Harvard students received tips for being an ALDC (an athlete, a legacy applicant, the child of a faculty or staff member, or an applicant on the dean’s interest list, often due to the applicant’s relationship with a donor). According to a study by SFFA’s own expert, the ALDC tip was determinative for 75% of ALDC admittees.
With affirmative action, Asian Americans rose from 3% of the class of 1980 to 27.6% of the class of 2026. Asian Americans are an extremely economically diverse group. Many Asian Americans face great adversity and have fewer educational opportunities before applying to college. If admissions were based strictly on test scores, about 20% of Asian Americans attending elite colleges would not be admitted.
Affirmative action arose at the height of the civil rights movement when President John F. Kennedy’s 1961 Executive Order 10925 and President Lyndon B. Johnson’s 1965 Executive Order 11246 mandated that federal government contractors “take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, creed, color, or national origin.”
When affirmative action came into practice in 1965, the federal government intended for the policies to do more than simply bar racial discrimination. Rather, affirmative action was created to level the playing field by neutralizing the effect of years of systemic racial discrimination and oppression.
SFFA is an organization led by anti-civil rights activist Edward Blum that filed the lawsuits against Harvard and UNC in 2014. It is part of a relentless crusade to ban the consideration of race in admissions. Blum’s coordinated campaign against holistic admissions includes the landmark case Fisher v. University of Texas in which the Court upheld the University of Texas’s race-conscious admissions practices. Blum has orchestrated attacks on civil rights from the classroom to the ballot box. He was also the architect behind Shelby County v. Holder, in which the Supreme Court gutted the seminal Voting Rights Act.
Yes. Since affirmative action policies were established in 1965, opponents of racial equality have repeatedly mounted legal challenges to dismantle and eliminate the consideration of race in admissions. For the 45 years preceding the release of the Harvard and UNC decisions, the Supreme Court had upheld race-conscious admissions policies and ruled that it is legally permissible for colleges and universities to consider race, as one of many factors, in admissions in order to assemble a diverse student body, so students can reap the benefits of learning in a diverse environment.
LDF has been deeply involved with all seven Supreme Court cases related to race-conscious admissions. The Supreme Court first upheld race-conscious admissions in Regents of the University of California v. Bakke in 1978. LDF submitted an amicus brief in Bakke that emphasized that the Supreme Court should uphold the respondent’s medical school affirmative action program because it remedied two conditions: a lack of doctors of color caused by de jure segregation and the lack of health care professionals serving communities of color.
LDF’s Equal Protection Initiative (EPI) is aimed at fully realizing the U.S. Constitution’s promise of equal protection under law by safeguarding, expanding, and deepening efforts to remove and remediate barriers to opportunity for Black people in the economy, our educational systems, and other areas through race-conscious and race-neutral means. For over eight decades, the Legal Defense Fund (LDF) has been at the forefront of shaping the legal meaning of the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution, most notably through its watershed victory in Brown v. Board of Education.
A new report offers recommendations for advancing educational equity in light of the Supreme Court’s affirmative action decisions, providing key recommendations that can increase access to equitable and diverse education.
