The Supreme Court, in a decision announced today, has banned race-conscious admissions at both public and private institutions of higher education, ruling that the practice violates the equal protection clause of the 14th amendment.
Harvard, which previously signaled that it will comply with the Court’s ruling, responded first with a letter about the decision addressed to members of the community. Signed by the deans of all the University’s schools as well as executive vice president Meredith Weenick, provost Alan Garber, president-elect Claudine Gay, and President Lawrence S. Bacow, the letter began by noting that the Court had held that “Harvard College’s admissions system does not comply with the principles of the equal protection clause embodied in Title VI of the Civil Rights Act.” But it noted that the Court had also ruled that “colleges and universities may consider in admissions decisions ‘an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.’” This exception follows a line of questioning raised during oral arguments concerning the UNC case by Justice Ketanji Brown Jackson ’92, J.D. ’96. “We will certainly comply,” the letter added, “with the Court’s decision.”
The letter went on to reaffirm “the fundamental principle that deep and transformative teaching, learning, and research depend upon a community comprising people of many backgrounds, perspectives, and lived experiences.
We affirm that:
- Because the teaching, learning, research, and creativity that bring progress and change require debate and disagreement, diversity and difference are essential to academic excellence.
- To prepare leaders for a complex world, Harvard must admit and educate a student body whose members reflect, and have lived, multiple facets of human experience. No part of what makes us who we are could ever be irrelevant.
- Harvard must always be a place of opportunity, a place whose doors remain open to those to whom they had long been closed, a place where many will have the chance to live dreams their parents or grandparents could not have dreamed.
The letter’s authors also pledged that “In the weeks and months ahead, drawing on the talent and expertise of our Harvard community, we will determine how to preserve, consistent with the Court’s new precedent, our essential values.”
Less than an hour later, President-elect Claudine Gay, who will assume the role of President in two days, released a video message about the ruling.
Analysis of the Court’s decision by contributing editor Lincoln Caplan was posted on the Harvard Magazine website Friday. A description of the legal background to this case and the consideration of race in admissions generally follows, including the ramifications and potential responses in both the educational and corporate realms.
The Long Road Back to the Supreme Court
Consideration of Race in higher education began in the 1960s and 1970s when colleges and universities began to recognize that African American, Native American, Asian/Pacific Islander, and Hispanic students and faculty were underrepresented on American campuses, and that this lack of diversity limited their ability to prepare students for life in a multiracial society. By the 1970s, many universities had adopted one of two models for increasing diversity. Harvard’s approach to assembling a diverse class represented one version of how to weigh race in admissions. That approach considers all of an applicant’s qualities, with some consideration for underrepresented minority status, in a holistic process that also weighs several dozen other characteristics, including the strengths and weaknesses of each candidate. The other model, used by the University of California system, allocated a certain number of spots to underrepresented minorities in every class. At the University of California, Davis, School of Medicine, for example, 16 out of 100 spots in each class were set aside for minority students.
The UC Davis approach was challenged in 1978. In Regents of the University of California v. Bakke, a divided Supreme Court narrowly ruled that the racial quotas used by the University of California were illegal, but affirmed, in an opinion written by Justice Lewis F. Powell Jr., (and joined by two separate groups of four Justices who concurred with parts of that opinion) that diversity in the classroom is a compelling state interest, and that consideration of race is allowed under the Constitution and Title VI of the Civil Rights Act of 1964. Powell appended to his opinion the amicus brief Harvard submitted in that case, which described the University’s holistic admissions program as an example of allowable race-conscious admissions.
As a consequence, universities nationwide began adopting versions of the Harvard program. One of those was the University of Michigan, whose programs were later challenged in two Supreme Court cases that were decided on the same day in 2003: Gratz v. Bollinger and Grutter v. Bollinger.
At issue in Gratz was Michigan’s undergraduate admissions program, which used a 150-point scale to rank applicants. A perfect SAT score, for example, was worth 12 points. Being a member of an underrepresented ethnic group was worth 20 points. The Court ruled that this point-based system was unconstitutional because it ensured that “the diversity contributions of applicants” could not be “individually assessed.”
In Grutter, the parallel case involving Michigan’s law school, the court upheld the school’s admissions program, which was very similar to Harvard’s. Writing for the majority, Justice Sandra Day O’Connor found that the law school had a compelling interest in having a truly diverse student body, and that it was using race to no greater degree than was necessary to achieve this goal. Four other justices joined O’Connor’s majority opinion (which cited Powell’s 1978 opinion in Bakke extensively), including Stephen G. Breyer, LL.B. ’64, and Ruth Bader Ginsburg, L ’59, LL.D. ’11. But Breyer and Ginsburg took exception to O’Connor’s assertion that “the court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
Breyer and Ginsburg’s reservations were well-founded. As noted in this magazine following the 2003 decision, then-professor of education and social policy Gary A. Orfield—who had been researching the “widening gap between the performance of white and black students enrolled in public schools”—told the Wall Street Journal at the time that, looking ahead 25 years, “if we go on the current trajectory, that gap in achievement will be greater than it is now.” A brief for 65 members of Congress in the current case confirmed and updated that trend, noting that since “Grutter, segregation in K-12 educational settings has increased, and, as a result, educational inequities have worsened.”
Enter Edward Blum. Although Grutter was widely regarded as signaling that Bakke had become a binding precedent that upheld limited consideration of race in admissions, each decision of the Court had turned on the narrowest of margins. And that was true again in Fisher v. University of Texas, a 2013 case in which conservative legal strategist Edward Blum sought to overturn the race-aware admissions program at the University of Texas (UT). In that instance, the Court did not address the constitutionality of the university’s approach. Instead, accepting the precedent of Bakke and Grutter, the Court remanded the case to the lower appellate court that had ruled in favor of the university on the grounds that it had not established whether the UT admissions program was necessary to achieve a “compelling state interest”—a standard known as “strict scrutiny” that is applied when a law infringes on a fundamental constitutional right. This was the standard cited by Powell in Bakke (as noted above.)
When the case returned to the Court as Fisher v. University of Texas (2016)—now generally known as Fisher II—a majority led by conservative justice Anthony Kennedy LL.B. ’61 ruled 4-3 that the University of Texas at Austin undergraduate admissions policy did indeed pass “strict scrutiny.” While the decision upheld the legality of UT’s race-aware policies, it emphasized that its favorable opinion was based on the fact that “The record here reveals that the University articulated concrete and precise goals—e.g., ending stereotypes, promoting ‘cross-racial understanding,’ preparing students for ‘an increasingly diverse workforce and society,’ and cultivating leaders with ‘legitimacy in the eyes of the citizenry’—that mirror the compelling interest this Court has approved in prior cases.” The court thus indicated that future-looking social benefits are legitimate grounds for considering race in an increasingly multicultural society—simultaneously signaling, as in Bakke, that race-conscious policies implemented to redress past discrimination (generally referred to as affirmative action) would not be.
Harvard in the Lower Courts. Given the prominence of Harvard’s holistic admissions process in Bakke, it is not surprising that Blum chose to bring litigation to directly challenge that program. The case against Harvard began in 2014 as a civil rights lawsuit charging that the College admissions office discriminates against Asian-American applicants and went to trial in Boston in October 2018. Final arguments were heard in a district court in Boston in February 2019, including a review of the statistical evidence presented by both Harvard and the plaintiff, Students for Fair Admissions (SFFA), which was formed as a Virginia nonprofit in 2014 with Blum as president, Abigail Fisher as secretary (she was one of two plaintiffs in Fisher v. University of Texas [2013] who was denied admission to the University of Texas in 2008), and her father, Richard Fisher, as a third officer of the organization.
When the federal judge presiding over the case ruled that Harvard’s admissions was “designed and implemented…consistent with guidance set forth by the Supreme Court,” Blum immediately vowed that SFFA would appeal. Oral arguments in the appeal began in September, 2020. Three First Circuit judges reviewed the records from the previous district court trial to determine if that decision contained errors. Finding none, they ruled in Harvard’s favor two months later. Blum vowed to appeal the decision to the Supreme Court, seeking its review in February of 2021. And he pressed ahead with two other private cases: against Yale (a case which has been on hold pending the Supreme Court’s decisions today); and against the University of North Carolina (UNC). Blum lost the SFFA case against UNC on October 18, 2021 in a U.S. District Court in North Carolina. As this magazine summarized then, “With the UNC ruling—the case went to trial last November—Blum’s arguments have been found lacking, on the facts and the law, as they pertain to both a private university, like Harvard, and a public one.” Nevertheless, that analysis continued, “If Blum succeeds in having his appeal of an SFFA case heard [by the Supreme Court], the facts may stand, but the law under which Harvard, UNC, and other institutions now conduct admissions, including consideration of race, might not—and the rules governing higher-education admissions, largely intact for more than four decades, might change substantially.”
Back to SCOTUS. In January 2022, the Supreme Court agreed to hear the cases brought by SFFA against both Harvard and UNC. Given the appointment of three new Justices during the Trump administration, the cases were widely regarded as “the most potent opening” to repeal race-conscious admissions in decades. Harvard filed its brief in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College on July 25. The case and that against UNC had by then been separated, presumably to allow Justice Ketanji Brown Jackson ’92, J.D. ’96, to participate in the UNC case. (A former Harvard Overseer, she had previously stated that she would recuse herself when the Court took up SFFA’s appeals.)
The Court heard oral arguments in both the Harvard and UNC cases in October 2022. Before the Court’s decision was announced today, it was widely expected that the Justices would not dispute the findings of the lower courts, but rather that they would rule on the constitutionality of Harvard’s and UNC’s admissions policies, which the district and appeals courts could not. The law governing Harvard’s admissions policies was thought to be Title VI of the Civil Rights Act of 1964, which prevents discrimination by programs and activities that receive federal funds, including private institutions such as Harvard. At issue under that law is the meaning of discrimination: was it passed by Congress in the 1960s to prohibit race-consciousness altogether, or was it meant to outlaw “subordination based on race, the perpetuation of a ‘caste system rooted in the institutions of slavery’” as retired Justice Breyer described it in a 2007 dissent.” (For more pre-decision analysis of the case, read legal expert and contributing editor Lincoln Caplan’s report on the arguments made before the Court.) But the Court chose to consider the constitutionality of both UNC and Harvard’s programs under the equal protection clause of the 14th amendment to the Constitution.
The likelihood that the Court would strike down consideration of race in admissions policies across the board had already led to speculation about how universities might respond.
Looking Ahead. Among those conjectural analyses was an editorial that appeared in this magazine’s November-December 2022 issue. Noting that “the public loathes affirmative action,” an assertion buttressed by surveys and the litmus test of the ballot box (California voters, for example, banned affirmative action in 1996, and voted not to repeal the ban by a wide margin in 2020), the editorial asked whether there might be other ways to “enhance the University’s ‘commitment to embracing diversity along many dimensions,’” as the Corporation’s senior Fellow Penny Pritzker put it, and counter its reputation as a place of privilege and elitism by emphasizing its ability to extend opportunity for all Americans.
Evidence that inequality has worsened in the United States since the time of the Grutter opinion is incontrovertible. Based on what happened in California and Michigan when public universities were forced to stop using race in admissions—underrepresented minority student admission and enrollment fell precipitously—universities will actively seek new ways to build diverse classes.
Among the strategic remedies universities might pursue to achieve diversity in a new regime are the use of data about income and accumulated wealth as proxies that could be used to increase minority admission rates. Targeting applicants from historically underrepresented high schools is another avenue that has been suggested. Inside Higher Ed recently explored the effectiveness of percentage plans and community college transfers. In Texas, for example, every public high school graduate in the top 10 percent of their class can attend any public college in the state. Other colleges have made significant diversity gains by admitting top students from community colleges as transfer students. And the abolition of standardized test scores that has already occurred at some colleges marks the dismantling of another barrier to minority access that could enhance the diversity of incoming classes. An open question before the ruling was made was whether the racial composition of a class could be monitored to assess the effectiveness of such programs.
The decision may also lead to broader social impacts, including on existing diversity, equity, and inclusion programs, both in educational institutions and in corporations. Given the importance of an educated, racially diverse workforce to the commercial success of businesses operating in today’s multicultural society, both types of institution are likely to seek robust ways to achieve and support diversity—no matter what the Court says.
