By Katherine A. Gilfillan, Esq.

On June 29, 2023, the United States Supreme Court issued its long-awaited decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, [1] which invalidated the race-based admissions program employed by Harvard College and the University of North Carolina to admit students into their hallowed halls.

Plaintiff challenged Harvard’s admissions program, which utilized race as a factor in its consideration for admittance, arguing that Harvard’s use of race violated Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment.

After an expansive recounting of Equal Protection Clause jurisprudence - including the Bakke and Grutter cases, which recognized that race-based admissions programs could be constitutional under certain circumstances, the Supreme Court invalidated the admissions programs at issue determining the institutions failed to demonstrate that their programs met the requisite strict scrutiny standard, i.e., that the process itself was narrowly tailored to serve a compelling governmental interest.

In its analysis, the Court noted several shortcomings, including that the asserted compelling interests, such as training future leaders and promoting diversity, lacked coherence and measurability, making them difficult to subject to judicial review. Focusing on a lack of measurable objectives, the Court indicated that a lack of such objectives perpetuated certain stereotypes and had the potential, if not the effect, of negatively impacting other racial groups who were not the beneficiaries of the race-based preference. For example, Harvard’s race-based preference resulted in fewer admissions for Asian-American students than other races.

Of further concern was the failure of either program to provide for a “logical end point.” The Court rejected Harvard’s argument that race-based admissions programs would terminate once “meaningful representation and diversity are achieved on college campuses,” noting that this concept was so amorphous that it was incapable of judicial review. It also rejected the proffered arguments that meaningful representation and diversity on college campuses could be measured by comparison of the constituency of a particular incoming class to prior incoming classes or the population in general as this amounted to impermissible racial balancing. The Court stressed that race-based admissions programs must have a logical end point rather than simply adopting an indefinite period of preference of race.

The Supreme Court’s decision has significant implications for any race-based college admissions programs across the country. It re-establishes the applicable standard of strict scrutiny to matters involving the Equal Protection Clause and requires that collegiate race-based admission programs have measurable objectives, avoid stereotypes and provide for a logical, if not defined, termination point. Public colleges and universities, as well as those who accept federal funds, will need to carefully evaluate their admissions practices to ensure compliance with the Court’s interpretation of the Equal Protection Clause.

For more information, contact Katherine A. Gilfillan, Esq. at KAG@spsk.com or 973-631-7857.

DISCLAIMER: This Alert is designed to keep you aware of recent developments in the law. It is not intended to be legal advice, which can only be given after the attorney understands the facts of a particular matter and the goals of the client.