Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina

AFFIRMATIVE ACTION

Did Harvard College and the University of North Carolina Impermissibly Use Race as a Factor in Their Admissions Decisions?

 CASE AT A GLANCE

Harvard College and the University of North Carolina both use race as one of many criteria in a holistic assessment of each individual applicant for admission. Both institutions use race in this way in order to help create intellectual diversity among their students and to promote a robust academic environment. Neither institution uses racial quotas or points. Both schools considered and adopted race-neutral alternatives to achieve broad diversity, but concluded that those alternatives alone would not achieve the diversity the schools sought. Both schools conduct ongoing reviews to assess the continuing need for their policies and available alternatives.

  Students for Fair Admissions, Inc. v. President
and Fellows of Harvard College
&
Students for Fair Admissions, Inc. v. University of North Carolina
Docket Nos.20-1199 and 21-707

 Argument Date: October 31, 2022 From: The First Circuit (Harvard) and the Middle District of North Carolina (University of North Carolina)

by Steven D.Schwinn
University of Illinois Chicago School of Law, Chicago, IL

 Introduction

 Under Court precedents, institutions of higher education may use race as one among many factors in an individualized and holistic review of each candidate for admission, in order to help achieve the educational benefits that come from a broadly diverse student body. This case tests whether the Court should overrule or narrow this long-standing standard.

Issue

1. Should the Court overrule its precedent allowing institutions of higher education to use race as one among many factors in an individualized and holistic review of each candidate for admission?
2. If not, did Harvard and the University of North Carolina (UNC) use race in a permissible way in their admissions programs?

Facts

 This case involves two different university admissions policies, but they are very similar. Both policies assess each applicant based on a variety of factors, including race, as part of a holistic and individualized review in order to achieve the educational benefits that come from student-body diversity. Neither policy uses racial quotas or points or otherwise assigns a rigid or categorical benefit based on an applicant’s race. Both institutions continue to use race as one of many factors in admissions only after they examined whether they could achieve their desired student-body diversity without race, and determined that they could not. And both institutions engage in ongoing efforts to assess their affirmative-action programs and to determine whether race-neutral alternatives might achieve the broad diversity they seek.

That said, let’s look at each policy more carefully.

Under Harvard’s policy, the school first compiles an application file for each candidate that includes a transcript, standardized test scores, and recommendation letters; an overview of the applicant’s high school; information about the applicant’s extracurricular activities, athletic participation, honors, and prizes; the applicant’s essays; the applicant’s intended field of study; the applicant’s family and demographic information; and reports from alumni or staff interviews.

A “first reader” then makes a tentative assessment of each applicant in four areas: academic, extracurricular, athletic, and personal. These numerical ratings provide a “preliminary” “starting point” for the admissions committee’s later assessment. The school does not admit or deny students based on these ratings. And first readers do not consider race in assigning an initial rating.

Next, first readers assign a “school support rating” and an “overall” rating. In assigning the overall rating, first readers may give “tips” to qualities such as unusual intellectual ability; strong personal qualities; outstanding creative or athletic abilities; or backgrounds that expand the socioeconomic, geographic, racial, or ethnic diversity of the class. First readers can also give tips to recruited athletes, legacy applicants, applications on the dean’s or admissions director’s interest lists, and children of faculty and staff.

First readers send the applications of competitive candidates to subcommittee chairs, who also assign preliminary ratings. Regional subcommittees meet to decide which candidates to recommend to the full admissions committee.

The full 40-member admissions committee then meets over several weeks to discuss candidates and make admissions decisions based on all the information in the applicants’ files. (At the full-committee stage, the earlier preliminary ratings “fade into the background” and the committee focuses on the whole files.) During this process, the dean and director of admissions periodically review one-page summaries of the applicant pool and the tentatively admitted class. These “one-pagers” include academic interests, geographic region, citizenship status, socioeconomic circumstances, gender, race, and legacy and recruited-athlete status. This information is used to forecast yield rates (which can vary across characteristics), “to evaluate the effectiveness of efforts to recruit diverse students,” and to “identify anomalies in the representation of students with certain characteristics, including race.” Based on this information, the admissions committee may “give additional attention to applicants” from an underrepresented racial group in order “to ensure any significant decline is not ‘due to inadvertence or lack of care.’” If the expected yield exceeds the available class slots (around 1,600), the committee can reduce the admitted class based on one or more characteristics of each applicant, including race.

Harvard also uses several race-neutral programs to achieve diversity. For example, it engages in targeted outreach to encourage racial minority students to apply, and it offers generous financial support to make the costs of attendance more affordable for all students. In 2017, Harvard established a committee to evaluate race-neutral alternatives. But after considering 13 separate alternatives, “the committee concluded that none would currently allow Harvard to achieve the educational benefits of diversity while maintaining its standards of excellence.” The school has started a process to reevaluate that conclusion.

Under UNC’s policy, the school compiles an application file for each candidate, usually from the Common Application, a standard application used by hundreds of institutions. Students may indicate a range of characteristics and background information, including military service, foreign-language proficiency, career interests, and race.

Readers in UNC’s admissions office then read each file guided by a nonexhaustive list of more than 40 criteria, including academic performance, athletic or artistic talents, and personal background. Readers then make a provisional decision. A second reader reviews a majority of the files. Senior admissions office personnel review a sample of files. And finally, a committee of veteran readers reviews provisional decisions from each high school.

UNC’s individualized, holistic review “considers all aspects of an applicant’s background and values many kinds of diversity.” For example, UNC considers veteran status, geographic diversity, community service, socioeconomic status, work history, creativity, capacity for leadership, and more. When the school considers race, it does so alongside these other factors. “An applicant’s race may occasionally tip the balance toward admission in an individual case, but almost always does not.”

Since 2004, UNC has also implemented several race-neutral efforts to achieve diversity. For example, the school provides resources to make the cost of attending affordable to all students. It “engages in significant recruiting efforts to encourage diverse students to apply and enroll.” It partners with underserved high schools in the state to increase applications from low-income, first-generation, and underrepresented applicants. And it “recruit[s] high-achieving community-college students.” More recently, UNC formed a working group and, separately, a committee on race-neutral alternatives in admissions. While the committee continues to study and analyze race-neutral alternatives (including expert analysis and the district court’s findings in this case), UNC has “not yet identified a workable race-neutral alternative,” although it “remains steadfastly committed to doing so.”

Students for Fair Admissions, Inc. (SFFA), a membership organization that spearheads challenges to affirmative-action programs, sued Harvard, arguing that the school impermissibly used race in its admissions decisions, to the detriment of Asian Americans. The district court rejected SFFA’s claim and upheld Harvard’s admissions program; the U.S. Court of Appeals affirmed; and the Court granted certiorari.

SFFA also sued UNC. The district court similarly rejected SFFA’s claims. Given that the Court had agreed to hear the Harvard case, SFFA asked the Court to bypass an appeal to the circuit court and grant “certiorari before judgment.” The Court agreed and consolidated the UNC case with the Harvard case.

Case Analysis

Under Court precedent, a college or university can use race in its admissions policy so long as the use of race is narrowly tailored and necessary to achieve a compelling government interest. (This test, strict scrutiny, is the same test that the Court applies whenever the government uses race in whole or in part to identify individuals for any purpose.) This means that a college or university can use race as one factor among many in a holistic, individualized review of each applicant in order to achieve the educational benefits that come from student-body diversity. Grutter v. Bollinger, 539 U.S. 306 (2003); Fisher v. University of Texas, 136 S. Ct. 2198 (2016). But an institution cannot use racial quotas; assign points for race in the admissions process; or assign any other rigid, categorical benefit according to an applicant’s race. (The Court adopted these standards for public college and universities, like UNC, under the Equal Protection Clause. But they apply exactly the same to private institutions that receive federal funds, like Harvard, under Title VI.)

In challenging the Harvard and UNC policies, SFFA argues first that the Court should overturn Grutter and categorically prohibit any use of race in university admissions. It argues that under Brown v. Board of Education and its progeny, schools cannot use race “as a factor in affording educational opportunities.” And “because Brown is our law, Grutter cannot be.” Moreover, SFFA says that the use of race in university admissions is based only on “stereotyping” (that applicants can contribute to ideological diversity because of their race), not evidence, and that Grutter wrongly gives universities more deference than other institutions (like the military) in their use of race. It claims that Grutter has led to all kinds of problems, including “anti-Asian stereotyping, race-obsessed campuses, declines in ideological diversity, and more.” And finally, SFFA contends that “Grutter cannot generate serious reliance interests,” because the ruling itself predicts that universities will no longer need affirmative-action programs by 2028.

SFFA argues next that even if the Court retains Grutter, both Harvard and UNC violate its standards. It says that both schools “award mammoth racial preferences to African Americans and Hispanics.” SFFA claims that neither institution plans to stop using race in its admissions policy. It contends that neither school seriously considered race-neutral alternatives to achieving diversity, at least “until they were sued.” And SFFA says that Harvard actively uses race against Asian Americans.

The schools counter (separately, but raising similar arguments) that the Court should not overturn Grutter. They claim that the original understanding of the Fourteenth Amendment (and by extension Title VI) allows the government to use race far more expansively than Grutter in order to address racial inequalities, and that generations of legislators have done just that. They say, contrary to SFFA, that Grutter is true to Brown, because, unlike Brown, affirmative action does not categorically exclude anyone, because affirmative action draws on Brown’s acknowledgment of the importance of education, and because affirmative action is designed to achieve broad diversity that benefits all students. They contend that affirmative action does not stereotype, as SFFA claims. Instead, they say that race indisputably informs perspectives and contributes to ideological diversity. And they assert that Grutter itself prohibits exactly the kind of harms that SFFA describes, such as discrimination against Asian Americans.

The schools argue next that their admissions policies easily satisfy Grutter’s standards. They claim that their policies use race as one of many factors in a holistic, individualized review of each candidate in order to achieve the educational benefits that come from broad diversity. They contend that they have considered and used race-neutral alternatives, but that these are insufficient, and that they engage in ongoing efforts to assess their use of race and explore alternatives. They say that the lower courts in both cases came to these same conclusions, and that SFFA badly distorts the record by claiming otherwise.

The government weighs in as amicus in support of the schools, making largely the same arguments. The government adds that it benefits from diversity in higher education in its many institutions and functions. (Notably, the government’s brief is signed by the general counsels for the Department of Defense, the Department of Homeland Security, the Department of Education, the Department of Health and Human Services, the Department of Commerce, and the Department of Labor, in addition to the Department of Justice.)

Significance

This case tests the continuing vitality of Grutter and the Court’s approach to race-based affirmative action in higher education. The lower courts in both cases ruled, after exhaustive reviews, that both schools’ affirmative-action policies satisfied Grutter’s demands. They also ruled that both schools adequately explored race-neutral alternatives to achieve the kind of broad diversity they sought, but that the schools ultimately determined that race-neutral alternatives alone would not work. Finally, they found that the schools engage in ongoing efforts to assess their use of race and explore race-neutral alterantives. Given the comprehensive rulings that these policies so comfortably satisfy Grutter’s standards, there’s really no reason the Court would agree to hear these cases except to overturn Grutter, or at least to sharply limit affirmative action in higher education.

The impact could be dramatic. In those states that ban the use of race in higher-education admissions, racial minority enrollment in competitive institutions has plummeted, even when schools engage in aggressive race-neutral efforts to diversify. The University of Michigan and the president and chancellors of the University of California drive this point home in their separate amicus briefs in support of the schools. These experiences tell us that if schools cannot use race at all, enrollment by racial minorities could similarly plummet across the board. This would obviously harm racial minorities. According to many amici, it would also harm the workforce, government operations at all levels, and society generally, as the benefits of diversity in higher education would be lost.

In determining whether to overturn Grutter, look for the Court to wrestle with the meaning of Brown v. Board of Education. By one reckoning, Brown means that the government cannot use race to segregate schools, because, given systemic racism, racial segregation inevitably results in inequalities, even for otherwise “equal” schools. (“Separate is inherently unequal.”) In other words, the government can’t use race to harm children. This view supports affirmative action, because the purpose is not to harm applicants, but rather to benefit all students through broad diversity.

But by another reckoning, Brown means that the government cannot use race at all, for any purpose. In other words, Brown prohibits any racial labeling, irrespective of the purpose or effect, and irrespective of broader systemic racism that might result in racial inequalities even under race-neutral government actions. Chief Justice John Roberts captured this reading of Brown when he wrote that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007). This view opposes affirmative action merely because affirmative action uses race at all, for any purpose.

This Court has already adopted the latter view of Brown in other contexts. It is likely to adopt it here, too, to overrule Grutter or to sharply limit the use of race in university admissions.

Look, too, for the Court to wrestle with the original understanding of the Fourteenth Amendment. As Justice Ketanji Brown Jackson noted at oral argument earlier this month in Merrill v. Milligan (21-1086), the Voting Rights Act case, the original understanding allowed the government to use race in order to redress racial inequalities. In other words, the Fourteenth Amendment was not designed to ban racial labeling; instead, it was designed to remedy racial inequalities, and it allowed the government to use race to do so. This original understanding tends to support race-based affirmative action. (But remember that, under Grutter, the purpose of affirmative action in higher education is to achieve the educational benefits that come from broad student-body diversity, not [necessarily] to remedy racial inequalities.) Nevertheless, this is a Court that is not at all shy about overturning long-standing precedent, history notwithstanding. And all indications point to the Court overturning Grutter here. 

ATTORNEYS FOR THE PARTIES

For Petitioner Students for Fair Admissions, Inc.(William Spencer Consovoy, 703.243.9423)

For Respondent Cecilia Polanco, et al.(David G. Hinojosa, 202.662.8600)

For Respondent University of North Carolina, et al.(Ryan Young Park, 919.716.6400)

For Respondent President and Fellows of Harvard College (Seth P. Waxman, 202.663.6800)

AMICUS BRIEFS

In Support of Petitioner Students for Fair Admissions, Inc.

• American Center for Law & Justice and Devon Westhill (Jay Alan Sekulow, 202.546.8890)
• Asian American Coalition for Education and the Asian American Legal Foundation (Gordon M. Fauth Jr., 510.238.9610)
• Californians for Equal Rights Foundation (Daniel Isaac Morenoff, 214.504.1835)
• Claremont Institute Center for Constitutional Jurisprudence (Anthony Thomas Caso, 916.601.1916)
• Defense of Freedom Institute for Policy Studies (John Clay Sullivan, 469.523.1351)
• Economists (C. Boyden Gray, 202.955.0620)
• Former Attorney General Edwin Meese III (Edward Mark Wenger, 202.737.8808)
• Former Federal Officials of the Department of Education’s Office for Civil Rights (William E. Trachman, 303.292.2021)
• Foundation Against Intolerance & Racism (Mary Elizabeth Keane, 202.223.2069)
• Freedom X (Mitchell Keiter, 310.553.8533)
• Gail Heriot and Peter N. Kirsanow (Peter Nicholas Kirsanow, 216.363.4500)
• Hamilton Lincoln Law Institute (Theodore Harold Frank, 703.203.3848)
• Judicial Watch, Inc. and Allied Educational Foundation (H. Christopher Coates, 843.609.7080)
• Legal Insurrection Foundation (William Alan Jacobson, 401.246.4192)
• Liberty Justice Center and Momoko Takahashi (Daniel Robert Suhr, 312.637.2280)
• LONANG Institute (Kerry Lee Morgan, 734.281.7100)
• Louis D. Brandeis Center for Human Rights Under Law and the Silicon Valley Chinese Association Foundation (Jonathan Andrew Vogel, 704.552.3750)
• Mark Keith Robinson and Winsome Earle-Sears (Thomas L. Brejcha Jr., 312.782.1680)
• National Association of Scholars (Dennis J. Saffran, 718.428.7156)
• Oklahoma, et al. (Mithun Mansinghani, 405.522.4392)
• Pacific Legal Foundation, Reason Foundation, Center for Equal Opportunity, Individual Rights Foundation, Chinese American Citizens Alliance of Greater New York, Coalition for TJ, and Yi Fang Chen (Wencong Fa, 916.419.7111)
• Parents Defending Education (Christopher Ernest Mills, 843.606.0640)
• Professor David E. Bernstein (Cory Ren Liu, 512.370.1800)
• Project 21 (David H. Thompson, 202.220.9600)
• Richard Sander (Stuart S. Taylor Jr., 202.365.1812)
• Southeastern Legal Foundation (Kimberly Stewart Hermann, 770.977.2131)
• Speech First (Bradley Alan Benbrook, 916.447.4900)
• Texas (Judd Edward Stone II, 512.936.1700)
• U.S. Senators and Representatives (Richard Shawn Gunnarson, 801.323.5907)
• Veterans for Fairness and Merit (Gene Clayton Schaerr, 202.787.1060)

In Support of Respondents

• 25 Diverse, California-Focused Bar Associations, Lawyers Associations, Civil Rights Organizations, and Community Foundations (Mark Remy Yohalem, 323.210.2958)
• 25 Harvard Student and Alumni Organizations (Michaele N Turnage Young, 202.216.5567)
• 1,241 Social Scientists and Scholars on College Access, Asian American Studies, and Race (Daniel Hirotsu Woofter, 202.362.0636)
• Adm. Charles S. Abbot, Adm. Dennis C. Blair, Gen. Charles F. Bolden, Jr., Gen. Thomas P. Bostick, Gen. Vincent K. Brooks, Adm. Walter E. Carter, Jr., et al. (Michael M. Purpura, 949.432.6906)
• Admissions and Testing Professionals (Daniel Dennis Doyle, 314.621.2939)
• American Association for Access, Equity and Diversity and Fund for Leadership, Equity, Access and Diversity (Marilynn Louise Schuyler, 415.926.7642)
• American Bar Association (Reginald M. Turner Jr., 312.988.5000)
  
• American Civil Liberties Union, et al. (Sarah Ann Hinger, 212.519.7882)
• American Council on Education and 39 Other Higher Education Associations (Jessica Lynn Ellsworth, 202.637.5886)
• American Educational Research Association, et al. (Angelo N. Ancheta, 415.672.0737)
• American Federation of Teachers (Kevin K. Russell, 202.362.0636)
• American GI Forum, et al. (Elizabeth Ann Ritvo, 617.856.8249)
• American Psychological Association, the Massachusetts Psychological Association, and the North Carolina Psychological Association (Melissa Arbus Sherry, 202.637.2200)
• Amherst, Barnard, Bates, Bowdoin, Bryn Mawr, Carleton, Colby, Connecticut, Davidson, Franklin & Marshall, Hamilton, Hampshire, Haverford, Macalester, Middlebury, Mount Holyoke, Oberlin, Pomona, Reed, Sarah Lawrence, Smith, St. Olaf, Swarthmore, Trinity, Union, Vassar, Wellesley, and Williams Colleges, and Bucknell, Clark, Tufts, Washington & Lee, and Wesleyan Universities (Mark David Harris, 212.969.3530)
• Anti-Defamation League (Samuel Pianko Groner, 212.859.8565)
  
• Applied Materials, Inc., Corteva Agriscience, Cummins Inc., DuPont de Nemours, Inc., Gilead Sciences, Inc., LinkedIn Corp., Mastercard Inc., Micron Technology, Inc., Microsoft Corp., Shell USA, Inc., and Verizon Services Corp. (Mark Simon Davies, 202.339.8631)
• Asian American Legal Defense and Education Fund Dean Richlin, 617.832.1140)
• Asian Americans Advancing Justice and 37 Organizations (Roberto Andres Rivera-Soto, 856.761.3416)
• Association of American Medical Colleges, et al. (Jonathan Saul Franklin, 202.662.0466)
• Black Women Law Scholars (Raymond Patrick Tolentino, 212.763.0883)
• Brown University, et al. (Matthew S. Hellman, 202.639.6000)
• College Board, National Association for College Admission Counseling, American Association of Collegiate Registrars and Admissions Officers, and Act, Inc. (Michael Alan Brown, 443.392.9401)
• Constitutional Accountability Center (Brianne Jenna Gorod, 202.296.6889)
  
• Council of the Great City Schools (John W. Borkowski, 312.526.1538)
• David Boyle (David Christopher Boyle, 734.904.6132)
• Deans of U.S. Law Schools (David Benjamin Oppenheimer, 510.326.3865)
• Deborah Cohen and 67 Other Professors (Mark Alexander Packman, 202.772.2320)
• Empirical Scholars (Susan Leann Baker Manning, 202.739.6000)
• F. Andrew Hessick (Richard A. Simpson, 202.374.4634)
• Faith Organizations including the General Synod of the United Church of Christ, American Baptist Home Mission Societies, and African Descent Lutheran Association of the ELCA (Corrine Anetra Irish, 202.457.6346)
• Georgetown University, et al. (Crystal Nix-Hines, 213.443.3000)
  
• HBCU Leaders and National Association for Equal Opportunity in Higher Education (Laurel Pyke Malson, 202.624.2500)
• HR Policy Association (George Roger King, 614.582.3939)
• Human Rights Advocates and Human Rights First (Constance de la Vega, 415.422.2296)
• Individual Scientists (Ashley Lee Hogewood, 991.743.7306)
• Law Firm Antiracism Alliance (Stephen Robert McAllister, 785.550.5180)
  
• Legal Scholars Defending Race-Conscious Admissions (Vinay Vasdev Harpalani, 215.873.4476)
• Major American Business Enterprises (Michael R. Dreeben, 202.383.5400)
  
• Massachusetts, et al. (Elizabeth Napier Dewar, 617.963.2204)
• Massachusetts Institute of Technology, et al. (Douglas Harry Hallward-Driemeier, 202.508.4776)
  
• Multicultural Media, Telecom and Internet Council, Inc., National Association of Black Owned Broadcasters, National Hispanic Foundation for the Arts, Emma Bowen Foundation for Minority Interests in Media, and National Newspaper Publishers Association (Emily Kanstroom Musgrave, 617.348.4407)
• National Academy of Education (Yelena Konanova, 212.390.9000)
  
• National Asian Pacific American Bar Association and National LGBTQ+ Bar Association (Daniel H. Bromberg, 415.983.1000)
• National Association of Basketball Coaches, et al. (Jaime Ann Santos, 202.346.4034)
  
• National Black Law Students Association (Deborah N. Archer, 212.998.6882)
• National Education Association, et al. (Alice Margaret O’Brien, 202.822.7035)
  
• National School Boards Association, National Association of Elementary School Principals, American Association of School Administrators, and American School Counselors Association (Pratik Arvind Shah, 202.887.4210)
• National Women’s Law Center and 37 Additional Organizations Committed to Race and Gender Equality (Richard Craig Smith, 202.654.9265)
  
• President and Chancellors of the University of California (Ginger D. Anders, 202.220.1107)
• Professors of Economics (Derek T. Ho, 202.326.7931)
  
• Professors of History and Law (Kathleen Roberta Hartnett, 415.693.2000)
• Robert C. “Bobby” Scott, Member of Congress, and 64 Other Members of Congress (Brigida Benitez, 202.429.3000)
  
• Southern Governors (Charles Luther McCloud, 202.434.5586)
• Students and Alumni of Harvard College (Elisabeth Susan Theodore, 202.942.5891)
  
• United States (Elizabeth B. Prelogar, Solicitor General, 202.514.2217)
• U.S. Senators and Former Senators (Robert Allen Long Jr., 202.662.5612)
  
• University of Michigan (John Patrick Elwood, 202.942.5992)
• Washington Bar Association and Women’s Bar Association of the District of Columbia (Upnit K. Bhatti, 202.339.8400)
  
• Youth Advocates and Experts on Educational Access (Kelly M. Dermody, 415.956.1000)

In Support of Neither Party 

• America First Legal Foundation (Jonathan F. Mitchell, 512.686.3940)
• Ann M. Killenbeck and Mark R. Killenbeck (Stuart S. Taylor Jr., 202.365.1812)
  
• Jewish Coalition for Religious Liberty (John J. Bursch, 616.450.4235)
• Professor Fiona A. Harrison (Alan B. Morrison, 202.994.7120)