Rethinking Diversity: Students for Fair Admissions v. Harvard and the End of Race-Conscious Admissions
The Supreme Court’s ruling in Students for Fair Admissions v. President & Fellows of Harvard College (2023) marked the end of race-conscious admissions that had been constitutionally tolerated since Bakke and Grutter. [1] For many decades, elite universities had justified the holistic use of race as a means of realizing the educational benefits of diversity. In SFFA, the Court reinterprets race classifications in admissions as unconstitutional. In doing so, although explicit racial categorizations are abolished, the decision likely invites more nuanced legal battles over less conspicuous attempts to promote diversity.
The challenges to Harvard and the University of North Carolina were aimed at holistic admission systems that had become the standard. Both schools evaluated applicants on the basis of academic qualifications, extracurriculars, recommendations, essays, and subjective assessment. Race, they argued, was never determinative but could play a small “plus factor” in a tiebreaker situation. Students for Fair Admissions alleged that these race conscious policies, even if just a small plus factor, systematically disadvantaged Asian American applicants and therefore violated Title VI, in reference to Harvard and the Equal Protection Clause, against University of North Carolina Chapel Hill. [2]
The Court’s ruling maintains some familiar doctrinal language but readjusts how it is applied. In the earlier precedents, a limited role for race was circumscribed. In Regents of the University of California v. Bakke (1978), the Court disavowed quota systems but, in Justice Powell’s influential opinion, allowed race to be one factor in individualized consideration. [3] In Grutter v. Bollinger (2003), the Court upheld this approach, finding diversity to be a compelling interest and permitting universities some deference in admissions design. [4] In Fisher v. University of Texas, the Court continued to accept that achieving the educational benefits of diversity is a "compelling interest" and that that race can be used as a "factor of a factor" in a holistic, individualized review, rather than a quota but applied the “strict scrutiny” standard to evaluation of the university’s policy and that race neutral alternatives were considered but ineffective. [5] “Strict scrutiny” is the highest level of review and requires the government to prove its action serves a compelling government interest, is narrowly tailored to achieve that interest, and is the least restrictive means available, in order to pass constitutional muster.
SFFA retains some of that rhetoric but limits its application. Under strict scrutiny, Chief Justice Roberts’ majority found that the programs Harvard and UNC applied failed both parts of the test. On one side, the Court asked whether the universities’ stated interests in things like training future leaders and reducing stereotypes were specific enough to be judicially administrable. The majority was concerned that courts cannot reliably measure whether a university has fulfilled its diversity interest. [6]
Regarding narrow tailoring, the Court majority made clear that race sometimes was the deciding factor in individual admissions decisions, considering this a direct preference that imposes relative burdens in a competitive selection process. The Court also faulted the universities for failing to show that they had made a good-faith effort to exhaust race-neutral alternatives, finding that there was available modeling to suggest that alternatives might exist but were not explored. This reasoning increased the level of scrutiny of race-conscious policies and caused institutions to move towards race-neutral strategies where possible. [7]
However, the opinion did not completely rule out the possibility of race-related experiences from being considered. It permitted colleges to evaluate applicants’ narratives of discrimination, community, and leadership in a manner that sheds light on individual traits such as resilience, insight, and initiative, as long as these are framed in terms of characteristics, not racial preferences. This is a fine line and may be contested in practice as colleges develop application questions and evaluator training. [8] It likely encourages teenage high school students to create a narrative of overcoming racism.
The dissents highlight the historical and practical objections. Justices Sotomayor and Jackson argued that the post‑Civil War amendments to the Constitution allow for remedial and race-conscious policies that seek to dismantle the existing racial hierarchies, and that the majority’s colorblind approach might overlook the existing race-specific disadvantages. They referred to institutional practices like legacy admissions, donor preferences, and other persistent advantages that continue to benefit already-advantaged applicants. [9] This raised questions about coherence and equity in how admissions preferences are regulated. [10]
From a doctrinal perspective, SFFA significantly heightens the evidentiary and justificatory burden for the use of race by the government. This is because institutions are now required to articulate more specific, more measurable interests as well as make a stronger empirical case that race-neutral alternatives were genuinely considered and that they would be insufficient. Courts are also required to review empirical claims in a more rigorous fashion and less deferentially with academic judgment. This is a shift that will shape litigation and policy choices for public and federally funded private institutions under Title VI.
The ruling limits explicit racial benefits and targets whilst promoting the use of factors like parental income, geography, and first generation students. It also promotes structural reforms such as percentage plans and pipeline investments. This shift presents both opportunities and challenges though as race-neutral reforms can have the effect of increasing access, but may also cause a reduction in underrepresented minorities at the most selective institutions. This will likely have an impact downstream as minority students may not have the same access to professional pipelines. [11] Following the 1996 passage of Proposition 209 in California, which banned race-conscious admissions, black enrollment at UC Berkeley and UCLA dropped significantly. At UCLA, the share of underrepresented minorities in the freshman class fell from roughly 28% in 1995 to 14% in 1998. Despite the UC system’s implementation of a more holistic review process, Black and Latino enrollment at those top-tier schools has still not recovered from the immediate effects.
One of the key legal concerns emerging from SFFA is how race-correlated proxies and opaque algorithms will be treated by the courts. Plaintiffs are likely to argue that the use of neutral factors with the predictable effect of perpetuating past racial outcomes is an unconstitutional end‑run. Institutions will have to navigate the need for diverse educational experiences with the need to document and support their goals.
SFFA therefore marks the end of one chapter and the beginning of another. It limits the form of race-conscious admissions that have been endorsed since Bakke while leaving room for narrative-based consideration of race-related experiences. Whether this will lead to a system that is more procedurally consistent is yet to be seen and will likely be determined by how institutions and legislators react. The decision makes empirical rigor and transparency more central than ever to efforts to allow for opportunity.
Edited by Alix Stzejman
Endnotes
[1] 20-1199 students for fair admissions, inc. v. president and ... https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf.
[2] Ibid.
[3] Regents of Univ. of California v. Bakke | 438 U.S. 265 (1978) | justia U.S. Supreme Court Center, https://supreme.justia.com/cases/federal/us/438/265/.
[4] Grutter v. Bollinger | 539 U.S. 306 (2003) | justia U.S. Supreme Court Center, https://supreme.justia.com/cases/federal/us/539/306/.
[5] Fisher v. University of Texas at austin | 579 U.S. ___ (2016) | justia U.S. Supreme Court Center, https://supereme.justia.com/cases/federal/us/579/14-981
[6] 20-1199 students for fair admissions, inc. v. president and ... https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf.
[7] Ibid.
[8] Ibid.
[9] Ibid.
[10] Olivia B. Waxman, “Read Dissents in the Supreme Court Affirmative Action Case,” Time, June 29, 2023, https://time.com/6291230/affirmative-action-dissent-jackson-sotomayor/.
[11] Erica Turret, Ishan Bhabha, and Peggy Xu, “One Year Later: The Implications of SFFA for Corporate America,” The Harvard Law School Forum on Corporate Governance, August 6, 2024, https://corpgov.law.harvard.edu/2024/08/06/one-year-later-the-implications-of-sffa-for-corporate-america/.