Digesting Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, Supreme Court Case Nos. 20-1199 and 21-107 (June 29, 2023) is going to take time. Our education law team will provide more substantial insight in due course, however, we wanted to provide some initial impressions and we look forward to sharing more thoughts and strategies. In the world we live in, simplifying and distributing content may result in misimpressions from media stories about the case. It is important to note that the decision does not indicate that institutions can’t or shouldn’t take steps to enhance diversity, but the decision surely does impact how that can be done, and it creates real concerns about losing an effective means to reach goals.
- It appears that as a practical matter, race cannot be used in college admissions decisions. Chief Justice John Roberts’ opinion does not expressly overrule Grutter v. Bollinger (the 2003 case permitting the law school at the University of Michigan to use race as a factor) but instead the Court ruled that both Harvard’s and North Carolina’s use of race as a factor in admissions failed all aspects of strict scrutiny. Justice Sonia Sotomayor in dissent takes the majority to task for not abiding by the doctrine of stare decisis and described the majority opinion's ruling as “indifference to race is the only constitutionally permissible means to achieve racial equality in college admissions.”
- The decision does not mean that institutions may not have diversity goals, recruit to enhance diversity, or engage in work to enhance diversity through means that do not consider race in the admissions process.
- The Court endorsed admissions processes that consider an applicant’s discussion of how that applicant’s race or protected status affected the applicant’s life—so long as the process is not a way to disguise consideration of protected status.
Creative and thoughtful professionals throughout higher education will surely maintain their commitments to enhancing institutional diversity. And hopefully as scholars and practitioners sort through the complex case, there will be ways to focus on and further develop efforts that institutions can make to advance their interests in diversity.
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