As the end of June 2023 approached, higher education and student affairs students, staff, faculty, and others focused their attention on the Supreme Court of the United States, as the Court prepared to hand down its final decision of the term. The remaining cases touched upon a number of highly politicized issues including: the balance between religious freedom and LGBTQ+ rights, accommodating religious beliefs in the workplace, and President Biden’s loan forgiveness program. However, the most significant remaining case in the eyes of many in higher education addressed the future of race-conscious admissions programs. Most observers had concluded based upon the oral arguments held on October 31, 2022, that the conservative majority on the Court was very likely to strike down these programs, but it remained unclear how far the majority would go in their decision. In order to fully understand the Supreme Court’s ruling in the Harvard and University of North Carolina cases, we must first consider the history of affirmative action, particularly in higher education, and the background and context of these cases.
History of Affirmative Action
After World War II, the Supreme Court began to hear cases regarding segregation in American higher education. In two cases involving the University of Oklahoma, Sipuel v. Board of Regents (1948) and McLaurin v. Oklahoma State Regents (1950), the Court ruled first that a Black student must be admitted to the University of Oklahoma’s law school because the state did not have a public law school open to Black students and subsequently that Black students in the law school cannot be physically separated from white students in the classroom. Texas had recently established a law school for Black students, but in Sweatt v. Painter (1950) the Supreme Court ruled that the separate, fledging law school did not provide equal educational opportunities for Black students.
In each of these cases, the Supreme Court was working within the framework established by Plessy v. Ferguson (1896) which made segregation by race constitutional under the Equal Protection Clause of the Fourteenth Amendment if those separate accommodations were equal. In 1954, the Supreme Court overturned the decision in Plessy in its ruling in Brown v. Board of Education. Brown represented a group of five cases each challenging racial segregation in K-12 education. Thurgood Marshall and other lawyers representing the plaintiffs argued that Plessy was wrong and should be overturned because, “state-imposed segregation was inherently discriminatory and therefore a denial of the equal protection clause of the Fourteenth Amendment” (Patterson, 2001, p. 53). While the Court’s ruling in Brown was clear and unanimous, the process of desegregation would take decades.
Affirmative action would enter the lexicon in the 1960s when President John F. Kennedy issued Executive Order No. 10925 (1961) which required that all federal 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.” In 1965, President Lyndon B. Johnson signed the Civil Rights Act of 1964 into law which prohibited institutions which were recipients of federal financial assistance from discriminating on the basis of race, color, or national origin. Title VII of the Civil Rights Act of 1964 also prohibited discrimination in employment on the basis of race, color, religion, sex and national origin. The following year, President Johnson issued Executive Orders No. 11246 and No. 11375 (1965) which required federal contractors to develop affirmative action plans. By the late 1960s, a number of states and individual institutions of higher education had developed formal plans utilizing a variety of approaches to enhance enrollment by underrepresented groups under the umbrella of affirmative action (Howard, 1997).
The issue of affirmative action in college admissions would first come before the Supreme Court in DeFunis v. Odegaard (1974). However, the Court would avoid ruling on the central question and instead the majority concluded that the case was moot because when the case was heard, DeFunis was in his last semester of law school and no decision the Court delivered would alter his circumstances. The dissenting justices argued regardless of DeFunis’ status the Court should address the central issues of the case or they would be forced to do so in a future case (Howard, 1997).
In 1973 and 1974, Allan Bakke applied for and was denied admission to the Medical School of the University of California at Davis. By 1973, the entering class at the Medical School was 100 students each year. The Medical School had developed a special admissions program which set aside 16 seats for applicants from disadvantaged groups. Bakke, who was white, was never considered for one of those 16 seats. After being rejected in 1974, Bakke sued arguing that he was discriminated against on the basis of his race in violation of the Equal Protection Clause of the 14th Amendment. The University of California argued that the special admissions program was necessary and appropriate for multiple reasons: the need for doctors in minority communities, to remedy the effects past discrimination, to address the historical lack of minority doctors, and the need to have a more diverse student body in the medical school (Kaplin, et al., 2020).
The Supreme Court’s decision in Regents of the University of California v. Bakke (1978), would generate even more confusion in the minds of many. The conservative justices on the Court (Burger, Rehnquist, Stewart, and Stevens) decided that the special admissions program violated Title VI of the Civil Rights Act of 1965 while the liberal justices (Blackman, Brennan, Marshall, and White) concluded that it was permissible under the Equal Protection Clause. Justice Lewis F. Powell, Jr.’s opinion was the only with which a majority of the justices agreed—however, part of his decision was joined by the conservative justices and a different part by the liberal group. Justice Powell agreed with Burger, Rehnquist, Stewart, and Stevens that the special admissions program illegally discriminated against Bakke through the use of what was effectively a quota system. However, Justice Powell, with support from Blackman, Brennan, Marshall, and White, articulated a model for the race-conscious admissions moving forward. Justice Powell applied a strict scrutiny standard to evaluate the case, which requires that the consideration of race be narrowly tailored to advance a compelling state interest.
Justice Powell described a model in which race is one factor in an admissions decisions which he based upon the system at employed at Harvard. The model that Powell outlined in his Bakke (1978) decision would serve as a framework for race-conscious admissions in the decades to come:
In such an admissions program, race or ethnic background may be deemed a “plus” in a particular applicant’s file, yet it does not insulate the individual from comparison with all other candidates for the available seats. The file of a particular black applicant may be examined for his potential contribution to diversity without the factor of race being decisive when compared, for example, with that of an applicant identified as an Italian-American if the latter is thought to exhibit qualities more likely to promote beneficial educational pluralism. Such qualities could include exceptional personal talents, unique work or service experience, leadership potential, maturity, demonstrated compassion, a history of overcoming disadvantage, ability to communicate with the poor, or other qualifications deemed important. In short, an admissions program operated in this way is flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight. (p. 317)
Part of the legal debate in the years after Bakke was whether Justice Powell’s decision should be regarded as binding because of the unique nature of the split majority or lack of consensus in this case.
In the years that followed Bakke (1978), colleges and universities which built their race-conscious admission programs upon Powell’s plus model prevailed when their policies were challenged (Kaplin, et al., 2020). By the mid-1990s, things had certainly heated up. In Hopwood v. Texas (1996), the U.S. Court of Appeals for the Fifth Circuit rejected the race-conscious admissions programs employed by the University of Texas Law School. The Fifth Circuit in its decision directly rejected Justice Powell’s argument in Bakke ruling that “any consideration of race or ethnicity by the law school for the purpose of achieving a diverse student body is not a compelling interest under the Fourteenth Amendment” (p. 944). The Fifth Circuit rejected the idea that Powell’s Bakke’s opinion represented the majority decision and framed it instead as solely his. The Hopwood decision would lead the state of Texas to adopt its 10% plan which required public universities to accept students who graduated in the top 10% of their high school class in an effort to preserve some measure of diversity. The conclusions reached by the appellate court in Hopwood only affected colleges and universities in Louisiana, Mississippi, and Texas.
In the years that followed Hopwood (1996), a number of legal challenges were brought against race-conscious admissions programs across the country and it was only a matter of time before the issue once again appeared before the Supreme Court. In 2003, the Supreme Court heard and decided two cases regarding race-conscious admissions at the University of Michigan. Grutter v. Bollinger (2003) involved a challenge to the law school’s admissions program and Gratz v. Bollinger (2003) the admissions process for the undergraduate College of Literature, Sciences, and the Arts. The Supreme Court upheld the admissions process in the law school, but rejected the system employed by at the undergraduate level. Fundamentally, in Grutter and Gratz, the Supreme Court ruled “rigid racial quotas are impermissible and that other, more flexible forms of racial preferences are permissible” (Kaplin, et al., 2020, p. 425).
Justice Sandra Day O’Connor writing for the majority in Grutter reinforced Powell’s Bakke (1978) argument, opining “student body diversity is a compelling state interest that can justify the use of race in university admissions” (p. 325). The law school engaged in an individualized holistic review of every application and race was a factor that could be considered in admissions decision which Justice O’Connor described as narrowly tailored thus meeting both elements of strict scrutiny. However, she stressed that this was permanent decision noting, “Race-conscious admissions policies must be limited in time” (p. 342).
In the undergraduate admissions process, Michigan used a formula in the admissions process and students from underrepresented groups received specific points in the formula. The majority in Gratz, which also included Justice O’Connor, determined this lack of individualized consideration of students failed to meet the narrowly tailored aspect of strict scrutiny. The Court in Gratz and Grutter based the decisions on both the Equal Protection Clause of the Fourteen Amendment and Title VI of the Civil Rights Act meaning that these cases would apply to public institutions as well as any private institution receiving federal financial assistance.
The Supreme Court would return to the consideration of strict scrutiny in the context of race-conscious college admissions a decade later in Fisher v. University of Texas at Austin (2013). This case is also significant as it marks the first case before the Supreme Court brought by Edward Blum who would later form Students for Fair Admissions. Blum had been fighting against the consideration of race in American society since the 1990s (Garcia-Navarro, 2023). The U.S. Court of Appeals for the Fifth Circuit had rejected a challenge to the University of Texas undergraduate admissions system and the Supreme Court remanded the case back to the appellate court which it ruled had properly applied strict scrutiny.
The Fifth Circuit would consider the University of Texas’ system a second time and again upheld it. The case was appealed to the Supreme Court a second time in Fisher v. University of Texas at Austin (2016). In his Fisher decisions, Justice Anthony Kennedy ultimately upheld the University of Texas’s admissions system. He, like O’Connor, cited Powell’s Bakke decision to describe the compelling interest that justified the consideration of race in terms of “the educational benefits that flow from a diverse student body” (2013, p. 308). Like O’Connor in Grutter, Kennedy in his Fisher decisions stressed that race-conscious admissions must end at some point. While he had failed to convince the Court in Fisher, Edward Blum had other cases pending challenging the consideration of race in admissions.
Harvard and UNC
Even before he lost the Fisher (2016) case, Blum and his new organization, Students for Fair Admissions (SFFA), had sued Harvard University over its use of race-conscious admissions. Blum pursued a slightly different approach with the Harvard lawsuit by actively recruiting Asian-American students to challenge the admissions process at Harvard. Blum sought to analogize the treatment of Asian-American in the Harvard admissions to the quotas for Jewish students a century before (Karabel, 2006). SFFA also sued the University of North Carolina but followed a more conventional approach with claims of reverse discrimination. Both of these cases were focused on undergraduate admissions. In 2020, the U.S. Court of Appeals for the First Circuit upheld the trial court’s decision in favor of Harvard. In 2021, the federal district court upheld the University of North Carolina’s admissions policy. SFFA appealed the Harvard decision to the Supreme Court and then petitioned the Court to take up the UNC case without further appellate review. In January 2022, the Supreme Court agreed to take up both cases. The Court heard separate oral arguments in both cases on October 31, 2022.
Although considered separately for the purposes of oral arguments, the Supreme Court consolidated the cases for their decision. On June 29, 2023, the Supreme Court announced from the bench its decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College which also serves as the decision in the UNC case. As most observers predicted, the conservative majority on the Court overturned 50 years of precedents dating back to Bakke (1978) and declared both Harvard and UNC admissions processes to be unconstitutional in an opinion written by Chief Justice John Roberts.
Applying strict scrutiny, Roberts rejected the educational benefits argument as a compelling governmental interest that could justify the consideration of race because they were not “sufficiently coherent” (Students for Fair Admissions, Inc. v. President and Fellows of Harvard College , 2023, p. 23) for review. Because these educational goals cannot be measured to his satisfaction, how would the courts know when race-based admissions should end? Roberts also faulted Harvard and UNC for the lack of clear connection between the means they used (the consideration of race in admissions) to the goals they identified. Roberts also criticized the racial categories themselves as imprecise and opaque. Roberts completely rejected the “Plus 1” model established by Powell in Bakke (1978) and affirmed in Grutter (2003), “College admissions are zero-sum. A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter” (p. 27).
Roberts also latched onto an aside that Justice O’Connor made in her Grutter decision where she expressed hope that in 25 years the consideration of race would not be necessary in college admissions. He instead framed this a deadline of sorts that supported this decision. However, this ignored Justice O’Connor’s later statements on this very issue, “That 25-year expectation is, of course, far from binding on any justices who may be responsible for entertaining a challenge to an affirmative action program in 2028” (O’Connor & Schwab, 2010, p. 62).
Roberts did exclude completely from his decision the admissions processes employed by the U.S. military academies because they were not parties to the case and there could be unique issues present. However, within two weeks, SFFA had set its sights on those same academies (Bauer-Wolf, 2023).
Toward the end of his decision, Roberts did suggest that while race could not be considered in admissions that students’ experiences related to race to face could be considered noting, “At the same time, as all parties agree, 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” (p. 39). This was little comfort to Justice Sonia Sotomayor who wrote in her dissent, “This supposed recognition that universities can, in some situations, consider race in application essays is nothing but an attempt to put lipstick on a pig…. No one is fooled” (pp. 47-48). Justice Sotomayor urged institutions to continue to do what they can within the law:
To be clear, today’s decision leaves intact holistic college admissions and recruitment efforts that seek to enroll diverse classes without using racial classifications. Universities should continue to use those tools as best they can to recruit and admit students from different backgrounds based on all the other factors the Court’s opinion does not, and cannot, touch. Colleges and universities can continue to consider socioeconomic diversity and to recruit and enroll students who are first-generation college applicants or who speak multiple languages, for example. (pp. 49-50)
While this decision makes clear that race-conscious admissions programs as they have been practiced are not permissible, the debates about these issues are far from over.
Where Do We Go from Here
Despite the Supreme Court’s clear decision, undergraduate admissions for the upcoming academic year will remain unaffected at the vast majority of institutions of higher education. Only the most highly selective institutions of higher education are even considering race in undergraduate admissions decisions. For example, only 68 institutions of higher education, including both Harvard and UNC, admit fewer than 25% of students who apply. In fact, more than 90% of institutions admit at least half of all applicants (June & Elias, 2023). The impact will however be more pronounced with graduate admissions, particularly professional programs such as law and medicine.
Various groups are rushing in to offer advice to institutions about how they should make adjustments to the admissions process. In July, the SFFA wrote a group of 150 highly selective institutions of higher education offering the organization’s view of the application of the Supreme Court’s decision. SFFA’s urged institutions avoid any consideration of race and to provide no information to admissions officers regarding the racial characteristics of individual applicants or groups. Not surprisingly, higher education groups, including ACE, took issue with the recommendations offered by Blum as inaccurate (Jaschik, 2023). A number of institutions and the Common Application have begun adjusting essay prompts in response to the Supreme Court’s decision (Hoover, 2023).
The U.S. Department of Education held a one day summit on race-admissions late in July. Catherine Lhamon, Assistant Secretary, Office for Civil Rights, reported at the summit that OCR would additional guidance of institutions in August which was released on August 14 (Questions and Answers, 2023). She also suggested that the Court’s decision would only apply to admissions and not other campus programs such as such as scholarships (Knox, 2023). A group of Republican attorneys general went so far as write the CEOs of the Fortune 100 companies arguing that the Supreme Court’s decision applied to employment as well (Harper, 2023).
One other admission program has garnered significant attention in the wake of the Court’s decision—legacy admissions, which give a leg up to the children of alumni. Justice Gorsuch in his concurring opinion described these programs as, “While race-neutral on their face, too, these preferences undoubtedly benefit white and wealthy applicants the most” (2023, p. 15). In the weeks following the decision, a number of both public and private universities announced that they would eliminate or at least reduce legacy admissions. In Congress, bills were introduced in the U.S. House of Representatives (H.R. 4900) and Senate (S. 2524) to prevent institutions from giving preferential treatment to legacy students or the children of donors. The U.S. Department of Education is also currently investigating a civil rights complaints against Harvard stemming from its use of legacy admissions (Mangan, 2023).
References
Bauer-Wolf, J. (2023, July 13). Supreme Court victor SFFA sets sights on military academies’ race-conscious admissions policies. Higher Ed Dive. https://www.highereddive.com/news/supreme-court-victor-sffa-sets-sights-on-military-academies-race-conscious/686869/
Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).
Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (1964). https://www.govinfo.gov/content/pkg/STATUTE-78/pdf/STATUTE-78-Pg241.pdf
DeFunis v. Odegaard, 507 P.2d 1169 (Wash. 1973), dismissed as moot, 416 U.S. 312 (1974), on remand, 529 P.2d 438 (Wash. 1974).
Exec. Order No. 10925 3 C.F. R. 86 (1961).
Fisher v. University of Texas at Austin, 570 U.S. 297 (2013).
Fisher v. University of Texas at Austin, 579 U.S. 365 (2016).
Garcia-Navarro, L. (2023, July 8). He worked for years to overturn affirmative action and finally won. He’s not done. New York Times. https://www.nytimes.com/2023/07/08/us/edward-blum-affirmative-action-race.html
Gratz v. Bollinger, 539 U.S. 244 (2003).
Grutter v. Bollinger, 539 U.S. 306 (2003).
Harper, S. (2023, June 23). Discrimination against white job applicants and employees, or is it racial equity? Forbes. https://www.forbes.com/sites/shaunharper/2023/07/23/discrimination-against-white-job-applicants-and-employees-or-is-it-racial-equity
Hoover, E. (2023, August 1). An early peek at how admission applications are changing after the Supreme Court ruling. The Chronicle of Higher Education. https://www.chronicle.com/article/an-early-peek-at-how-admission-applications-are-changing-after-the-supreme-court-ruling
Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996).
Howard, J. R. (1997). Affirmative action in historical perspective. In M. Garcia (Ed.), Affirmative action’s testament of hope: Strategies for a new era in higher education (pp. 19-46). State University of New York Press.
Jaschik, S. (2023, July 13). The demands of Students for Fair Admissions. Inside Higher Ed. https://www.insidehighered.com/news/admissions/2023/07/13/demands-students-fair-admissions
June, A. W., & Elias, J. (2023, June 30). The Supreme Court’s admissions ruling mainly affects selective colleges. They’re a tiny slice of higher ed. The Chronicle of Higher Education. https://www.chronicle.com/article/the-supreme-courts-admissions-ruling-mainly-affects-selective-colleges-theyre-a-tiny-slice-of-higher-ed
Karabel, J. (2006). The chosen: The hidden history of admission and exclusion at Harvard, Yale, and Princeton. Mariner Books.
Knox, L. (2023, July 27). A national summit on a higher ed ‘low point.’ Inside Higher Ed. https://www.insidehighered.com/news/admissions/traditional-age/2023/07/27/frustration-and-uncertainty-affirmative-action-summit
Mangan, K. (2023, July 26). The U.S. Education Department could force Harvard to end legacy preferences. But will it? The Chronicle of Higher Education. https://www.chronicle.com/article/the-u-s-education-department-could-force-harvard-to-end-legacy-preferences-but-will-it?
McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950).
O’Connor, S. D., & Schwab, S. J. (2010). Affirmative action in higher education over the next twenty-five years: A need for study and action. In D. L. Featherman, M. Hall, & M. Krislov (Eds.), The next twenty-five years: Affirmative action in higher education in the United States and South Africa (pp. 58-73). The University of Michigan Press.
Patterson J. T. (2001). Brown v. Board of Education: A civil rights milestone and its troubled legacy. Oxford University Press.
Plessy v. Ferguson, 163 U.S. 537 (1896).
Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
Sipuel v. Board of Regents of the University of Oklahoma, 332 U.S. 631 (1948).
Sweatt v. Painter, 339 U.S. 629 (1950).
Questions and Answers regarding the Supreme Court’s Decision in Students For Fair Admissions, Inc. v. Harvard College and University of North Carolina. (2023). U. S. Department of Education’s Office for Civil Rights & U.S. Department of Justice’s Educational Opportunities Section. https://www2.ed.gov/about/offices/list/ocr/docs/ocr-questionsandanswers-tvi-20230814.pdf
About the Author:
Dr. John Wesley Lowery (he/him) is a professor and department chair in the Student Affairs in Higher Education Department at Indiana University of Pennsylvania where he has taught since 2008. John is a frequent speaker and author on topics related to student affairs and higher education, particularly legal and legislative issues including student conduct on which he is widely regarding as a leading expert.