What Could the End of Affirmative Action in College Admissions Mean for Nonprofits?

July 11, 2023

By: Melanie L. Bartlett

What could the end of Affirmative Action in college admissions mean for nonprofits?

The Supreme Court recently ruled 6 – 3 that colleges cannot consider race as a factor when reviewing applications in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, No. 20-1199, 600 U.S.     (2023) (“SFFA”). Under the history of rulings issued by the Supreme Court going back to 1978, higher education institutions were permitted to include race as a “plus” factor in admissions processes. The majority opinion reverses this approach to reviewing college applications. 

The application review processes of Harvard and the University of North Carolina (“UNC”) both included the consideration of race when admitting students. At the end of the application review process of Harvard, race was the determinative tipping point for accepting a significant percentage of BIPOC students. Similarly, the UNC admissions process included the option for the application reviewer to assign a substantial plus depending on the race of the prospective student. Both approaches were crafted to comply with previous Supreme Court rulings on affirmative action.

Students for Fair Admissions, a nonprofit organization, filed lawsuits against Harvard and UNC alleging that the consideration of race in the admissions programs violate the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. The Equal Protection Clause provides that, “[n]o state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”1 The Supreme Court analyzes claims under the Equal Protection Clause based on whether they eliminate racial discrimination, and any exception is examined under the “strict scrutiny” standard.2 Under this standard, the Court considers whether race is used to “further compelling governmental interest” and, if so, whether race is “necessary” to achieve such interest.3 

Chief Justice Roberts authored the majority opinion reaching the conclusion that both admissions programs violate the Equal Protection Clause of the Fourteenth Amendment.4 The majority opinion sets forth three reasons why the Equal Protection Clause was violated: (i) the programs failed to operate in a manner that could be subjected to meaningful judicial review to measure the goals of the processes and the means by which they were employed;5 (ii) the systems did not prevent race being used as a negative factor, which results in stereotyping applicants in direct contrast to the “core purpose” of the Equal Protection Clause”6; and, (iii) the processes lacked a “logical end point” as required by a previous Supreme Court ruling holding race-based approaches in admissions programs must have a termination point.7

In conclusion, the majority opinion states that, “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.”8 However, it provides that the essay should discuss the particular applicant’s experience and their unique ability to contribute to the institution. The opinion further explains that the applicant must be evaluated on their experience as an individual and not based on their race. This one paragraph seems to indicate that race still can be part of admissions decisions; it just cannot be a check the box item.

Importantly, Justice Gorsuch wrote a concurring opinion, joined by Chief Justice Thomas, to emphasize that Title VI of the Civil Rights Act of 1964 does not tolerate the practice of admitting or rejecting applicants based on race if the reviewer accepts federal funds.

What does this mean for nonprofit organizations?

Although the discussion of Title VI by Justice Gorsuch is not the majority opinion, it is foreseeable that his discussion could lead to claims against a nonprofit organization that accepts federal funds and engages in considering race as part of a program. It is also plausible that the majority opinion could spark claims against a nonprofit under the Equal Protection Clause for race-conscious programs.

Justice Gorsuch states that, “we can safely say that Title VI forbids a recipient of federal funds from intentionally treating one person worse than another similarly situated person on the ground of race, color, or national origin.”9 His opinion explains that by Harvard and UNC awarding a positive to applicants of a certain race, this naturally works as a penalty against other races when candidates are competing for a limited number of spots. On the flipside, the dissenting opinion of Justice Sotomayor, joined by Justices Kagan and Jackson, contends that the guarantee of the Equal Protection Clause can be enforced through race-conscious means, particularly in access to education, and that Justice Gorsuch’s depiction of Title VI is contrary to precedent.  

As of today, the question remains whether considering race as part of a grant-making process or acceptance into a nonprofit program should be subject to the SFFA analysis. The majority opinion is limited to admissions policies in higher education institutions, but many nonprofits may re-examine applications that consider race in selecting recipients of funding. This reassessment may also impact internal evaluations of candidates, diversity, equity, and inclusion endeavors, and ESG programs. Instead of including an applicant’s race as a plus factor in a funding review process, nonprofits may choose to require essays that encourage applicants to discuss systemic biases or discrimination they have faced as a way to ensure diversity.  

Nonprofits have long been at the forefront of race-conscious efforts to lower societal barriers and encourage inclusive environments, but it remains to be seen if SFFA will change how these programs are implemented. Many nonprofit organizations have signed a joint statement in response to the Supreme Court’s ruling pledging that they, “will remain steadfast in our collective mission to create a more equitable nation within the bounds of the law.”10 Although it is uncertain how operations will change for nonprofit organizations in the wake of SFFA, there is sure to be some shift within many nonprofits as they scrutinize the reasoning in the majority opinion.

If your nonprofit would like advice in navigating the new legal environment presented by SFFA, please contact Melanie Bartlett

1. U.S. Const. amend. XIV, § 1.
2. SFFA, 600 U.S.    , at *14-15 (2023).
3. Id., 600 U.S.    , at *15.
4. Although not discussed in the body of the majority opinion, the footnotes provide that a violation of the Equal Protection Clause byan institution that accepts federal funds is also a violation of the Title VI of the Civil Rights Act of 1964.
5. Id., 600 U.S.    , at *23.
6. Id., 600 U.S.    , at *24-30.
7. Id., 600 U.S.    , at *30-34 (citing Grutter v. Bollinger, 539 U.S. 306 (2003)).
8. Id., 600 U.S.    , at *39.
9. Id., 600 U.S.    , at *3 (Gorsuch, J., concurring).
10. Ford Foundation Statement.