On June 29, 2023, the United States Supreme Court held that Harvard College and the University of North Carolina each violated the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution and Title VI of the Civil Rights Act of 1964 in using race as a factor in their undergraduate admissions processes. Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023) (“SFFA”). This spelled the end for state-funded affirmative action. In its wake, several conservative actors—both private and public–have relied upon SFFA to challenge diversity, equity, and inclusion (“DEI”) programs in not only the public sector under the Equal Protection Clause and Title VI, but also programs in the private sector under Title VII and 42 U.S.C. § 1981. In this article, I will review SFFA and subsequent opinions that have extended and built upon its reasoning. In a follow-up article in the next issue of this newsletter, I will consider attempts to expand SFFA into the private sector, including challenges to law firm DEI programs.
SFFA reviewed race-conscious admissions practices at Harvard College and the University of North Carolina. At both universities, race was a consideration among a constellation of neutral factors used to promote the goal of creating a diverse student body. Ostensibly overturning Bollinger v. Grutter, 539 US 306 (2003), the Supreme Court in SFFA determined that race-conscious admissions practices in higher education were unconstitutional because they:
However, as similarly reasoned in Grutter, “universities may consider an applicant’s discussion of how race affected the applicant’s life so long as that discussion is concretely tied to a quality of character or unique ability that the applicant can contribute to the university.”
While the opinion raises several questions and has been the subject of much critique, the present article largely looks beyond these critiques to instead examine its legacy.
The Supreme Court has yet to fully rely on SFFA, but Justice Alito and Justice Thomas have attempted to clarify their positions in subsequent cases. The day after deciding SFFA, the Supreme Court denied certiorari in Thompson v. Henderson, where an injured plaintiff argued that opposing counsel employed racial stereotypes to bias the jury to award lower damages. 143 S.Ct. 2412 (2023). Upon motion, the state trial court granted a new trial and the Washington Supreme Court affirmed. Id. Justice Alito, joined by Justice Thomas, affirmed the denial of certiorari largely because a federal question had not been presented. However, they took the opportunity to cite SFFA and clarify that “the Fourteenth Amendment’s equal-treatment principle yields only when necessary to remediate specific, identified instances of discrimination that violate the Constitution or a statute, not generalized past or ongoing discrimination.” The justices also clarified that using racial stereotypes fits within the realm of a “possible defense” and in fact, the use of racial stereotypes are “run-of-the-mill.”
In Coalition for TJ v. Fairfax County School Board, a Virginia magnet high school’s admission’s practice considered the applicant’s admittance to an underrepresented middle school as a factor for admission. 68 F.4th 864, 871 (4th Cir. 2023). Plaintiff argued that the policy discriminated against Asian American applicants and violated 42 U.S.C. §§ 1981 and 1983. The district court found direct and circumstantial evidence of intentional discrimination and ruled that the practice violated the Fourteenth Amendment’s Equal Protection Clause. However, the Fourth Circuit reversed and granted summary judgment in favor of the school board, finding no disparate impact or material disadvantage to Asian American applicants who still received program offers above their proportion of applicants. Further, the facially race-neutral policy and the government interest in the educational benefits from a diverse student body, relying specifically on Grutter, satisfied the rational basis standard of review. Id.
The Supreme Court denied certiorari. Justice Alito, joined by Justice Thomas, dissented, arguing that a race-neutral policy is unconstitutional if the policy has a disparate impact–even a disparate benefit. In essence, discrimination is not defined by its impact or magnitude, but solely by its intent, even when using racially neutral criteria. Id. The justices go on to offer an offensive, a historical hypothetical about race-balancing a basketball team by expelling Black student-athletes. Id.
The Supreme Court has yet to clarify many of the lingering issues with SFFA, but Justice Alito and Justice Thomas are clearly in lockstep with each other on the matter.
