On January 24, 2022, the United States Supreme Court (the “Supreme Court” or the “Court”) granted certiorari in the Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (“SFFA v. Harvard”) case. The Court consolidated SFFA v. Harvard with SFFA v. University of North Carolina (“UNC”) because both lawsuits are being brought by the SFFA and seek to reverse the Court’s 2003 decision in Grutter v. Bollinger, 539 U.S. 306 (2003), upholding narrowly tailored, race-conscious measures to promote diverse student bodies in colleges and universities. The Court has extended the briefing schedule, and merits briefing will be completed this summer, with oral argument early in the October 2022 Term.
The case involving Harvard began in 2014, when SFFA, a nonprofit advocacy organization opposed to affirmative action, brought an action alleging Harvard violated Title VI of the Civil Rights Act (“Title VI”) by implementing a race-conscious admissions program that SFFA contended discriminated against Asian-American applicants. In conjunction with this lawsuit, SFFA also brought a similar claim under the Equal Protection Clause of the Fourteenth Amendment against UNC, alleging that UNC unfairly uses race to give significant preference to underrepresented minority applicants to the detriment of white and Asian-American applicants. SFFA also claimed that Harvard and UNC ignored viable race-neutral alternatives for achieving a diverse student body. Both cases also directly challenged the Supreme Court’s 2003 decision in Grutter, and at least implicitly both prior and subsequent Supreme Court precedents including Regents of University of California v. Bakke, 438 U.S. 265 (1878), Fischer v. University of Texas at Austin, 570 U.S. 297 (2013), and Fischer v. University of Texas at Austin, 579 U.S. 365 (2016), all of which had recognized the legality of some form of narrowly tailored, race-conscious affirmative action measures in higher education admissions.
In a 130-page complaint filed on November 17, 2014, SFFA asserted that “Harvard failed to meet the Supreme Court’s standard for the use of race in admission, “which are asserted to be justified by diversity in these ways: (1) it engages in racial balancing of its undergraduate class; (2) it impermissibly uses race as more than a “plus” factor in admissions decisions; (3) it considers race in its process despite the existence of workable race-neutral alternatives; and (4) it intentionally discriminates against Asian American applicants to Harvard College.” SFFA v. Harvard, 308 F.R.D. 39 (D.Mass.2015).
In June of 2015, the United States District Court for the District Court of Massachusetts (the “District Court”) held a fifteen-day bench trial and heard testimony from thirty witnesses. Harvard argued in response to SFFA’s claim that SFFA lacked standing because its “General Members play no meaningful role in the organization and thus SFFA does not genuinely represent them such that it has associational standing to sue on their behalf.” In fact, SFFA is funded primarily by Edward Blum, a wealthy opponent of affirmative action.
The District Court, however, found that SFFA had standing and agreed with SFFA that strict scrutiny—the requirement that a race-conscious program be “narrowly tailored” to serve a “compelling . . . interest”—was the applicable standard. Nevertheless, relying on longstanding precedent the District Court also found that Harvard’s admissions policies were narrowly tailored to serve a compelling governmental interest. Thus, the District Court concluded that Harvard met its burden of showing its admissions process did not violate Title VI. SFFA appealed.
Court of Appeals
On November 12, 2020, the United States Court of Appeals for the First Circuit (the “First Circuit” or the “Court of Appeals”) affirmed the decision of the District Court. On appeal, the United States Department of Justice (“DOJ”) had submitted a friend of the court brief in support of the SFFA, arguing that for an affirmative action program to satisfy the narrow tailoring requirement of strict scrutiny, it must not penalize members of any racial group, and a court should determine whether intentional discrimination exists in the policy’s execution. The First Circuit, however, concluded that Harvard did not engage in racial balancing or use race as a mechanical plus factor, and, therefore, its admissions program survived strict scrutiny. The Court of Appeals further held that the relatively lower personal ratings of Asian-Americans in the process was not the result of racial animus but was attributable to other external factors such as differences in the students’ personal essays and recommendations.
On February 25, 2021, SFFA petitioned for a writ of certiorari. In its petition for certiorari SFFA asked the Supreme Court to address two issues: (1) Whether the Supreme Court should overrule Grutter v. Bollinger and hold that institutions of higher education cannot use race as a factor in admissions and (2) whether Harvard and UNC are violating Title VI and the Constitution by penalizing Asian American applicants, engaging in racial balancing, overemphasizing race and rejecting workable race-neutral alternatives. In essence, SFFA is asking the Supreme Court to overturn its decision in Grutter v. Bollinger, where it held that the “Equal Protection Clause does not prohibit the law school’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.” In the alternative, SFFA seeks a ruling that, even if diversity continues to be considered a compelling interest in higher education admissions, Harvard and UNC’s policies still violate Title VI and the Equal Protection Clause because they are not sufficiently narrowly tailored to that goal.
This time, with a new administration in Washington, DOJ filed an amicus brief supporting Harvard. DOJ argued that the Supreme Court should not disturb the rulings below or disturb longstanding precedent. However, at least four justices of the Supreme Court rejected these arguments and decided to grant review. The case is scheduled for argument during the Court’s October 2022 Term, which means that a decision is likely sometime in the first half of 2023.
The Court’s ultimate ruling on the merits likely will either affirm, alter, or reverse, longstanding Supreme Court precedent that currently allows race-conscious policies if they satisfy strict scrutiny (that is, if they are narrowly tailored to serve a compelling governmental interest, including remedying identified past discrimination or promoting the educational benefits of diversity). Colleges and universities with race-conscious admissions policies or practices should closely monitor this case. It is possible that the current conservative majority on the Supreme Court could further restrict or eliminate the ability of institutions to use race-conscious tools in the admissions process. (Moreover, nine states including Arizona, California, Florida, Idaho, Michigan, New Hampshire, Nebraska, Oklahoma, and Washington already have laws prohibiting race-based affirmative action at all public universities). If that occurs, schools that value diverse enrollments may have to go back to the drawing board and conduct a wholesale reevaluation of all their admissions practices and the various competing priorities they serve.
Moreover, depending on the breadth of the Court’s decision, the ruling could have an affect on public school districts that employ race-conscious student assignment measures, particularly where such policies are used voluntarily to promote diverse school enrollments. Therefore, public school districts should also closely monitor this case and review any race-conscious policies, procedures, or practices that they may employ.