Supreme Court Strikes Down College Admissions Programs which Give Preference Based on Race

July 5, 2023

By: Colin A. Walker

On June 29, 2023, in an opinion written by Chief Justice Roberts, which five other justices joined, the U.S. Supreme Court struck down admissions programs at Harvard University and the University of North Carolina because they considered race as a factor in admitting applicants. The Court held that the programs violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Title VI of the Civil Rights Act of 1964. 
The Court began with the principle that under the Equal Protection Clause “no State shall deny to any person . . . the equal protection of the laws.” The Court then cited earlier precedent reflecting the “core purpose” of the Equal Protection Clause: “doing away with all governmentally imposed discrimination based on race.”  
Race cannot be used as the basis for government action unless the proponents can pass the test of “strict scrutiny,” the most difficult of the tests of constitutionality. This requires proof that the practice furthers a compelling governmental interest and is narrowly tailored to achieve that purpose. The Court observed, “Our acceptance of race-based state action has been rare for a reason. Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” 
The Court then engaged in a lengthy review of its precedent, which had upheld admissions programs which included consideration of race—carefully pointing out the limitations imposed by those cases. 
Both universities admitted that their admissions processes considered race as a factor in admitting applicants. They argued, however, that there were compelling governmental interests, including: 
•    Preparing graduates to adapt to an increasingly pluralistic society;
•    Better educating students through diversity;
•    Producing new knowledge stemming from diverse outlooks;
•    Promoting the robust exchange of ideas;
•    Enhancing appreciation, respect, and empathy, cross-racial understanding, and breaking down stereotypes.
The universities argued that the programs were narrowly tailored to achieve that purpose. 

The Court held that the admissions programs failed the strict scrutiny test. The Court explained that, though commendable, the admissions programs’ goals were too vague to be measured by the Court, which prior cases had held to be required. The Court also held that the programs tolerated racial stereotyping which previous cases had held to be impermissible. Furthermore, the programs had no “logical end point,” another requirement of prior cases. However, the Court stated that “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected their life, be it through discrimination, inspiration, or otherwise.” 
Although this case addressed consideration of race only in college admissions programs, there is a potential implication for race in the employment context, specifically Equity, Diversity, and Inclusivity (EDI) programs. Most EDI programs have similar goals to the admission programs at issue in this case (promoting diversity) and the means used to achieve those goals are similar (hiring diverse candidates). Furthermore, the language of Title VI of the Civil Rights Act of 1964 is eerily similar to that of Tittle VII of the same Act, which is the primary federal employment discrimination law. Title VI provides that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” Title VII provides that it is unlawful “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to their compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.”
As it does not take much imagination to think that the Supreme Court might be receptive to such arguments if it was asked to consider an EDI program in the employment context, employers should be aware that review of their hiring practices and EDI programs may be on the horizon.