Supreme Court holds affirmative action unconstitutional, so what’s next?

The United States Supreme Court issued its long-awaited decision in Students for Fair Admissions v Presidents and Fellows of Harvard College on 29 June 2023, finding the race-conscious admissions programmes used by Harvard College and the University of North Carolina at Chapel Hill to be unconstitutional.

The court had previously held that colleges and universities had a compelling interest in the educational benefits of a racially diverse student body that supported the use of race as one factor in a holistic college admissions programme. While the Supreme Court did not explicitly overrule that precedent in the Harvard decision, it functionally found that such an approach will no longer be allowed under the Equal Protection Clause of the Fourteenth Amendment for public institutions or under Title VI of the Civil Rights Act for any institution that accepts federal financial assistance.

The court issued six separate opinions in the case, spanning hundreds of pages. One certainty is that the Harvard decision will spawn years of litigation and untold pages of analysis. Shortly after the decision was issued, Students for Fair Admissions (SFFA), the group that brought suit against Harvard and the University of North Carolina, sent letters to 150 public and private higher education institutions with a list of actions it contends may not be taken by colleges and universities in the wake of the opinion. The Department of Education and the Department of Justice have stated that they will issue guidance around mid-August to assist colleges and universities in complying with the opinion.

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Meanwhile, colleges and universities with selective admissions processes must finalise any changes to their admissions practices so that staff can be adequately trained in time to review applications for the 2024-25 academic year. While each institution must review its own policies in light of its specific mission, goals and risk tolerance, there are some general guidelines to keep in mind moving forward. 

1. Ensure that admissions policies and processes state that race may not be considered for its own sake as a factor in admissions decisions. This does not mean that the admissions process must be “colour blind”. The Harvard decision does not prohibit applicants from identifying their race; it does prohibit institutions from providing a “plus” to any applicant just on the basis of their race.

2. Determine if your institution has a mission-based interest in a racially diverse student body. The Harvard decision does not find pursuit of a racially diverse student body to be illegal; it only finds that such an interest is not compelling as a constitutional matter. In other words, an institution may use race-neutral means to obtain a racially diverse student body. If, however, an institution determines, in the wake of the Harvard decision, that it will no longer seek a racially diverse student body, it may wish to openly say so because such a statement may lessen its litigation risk.

3. If your institution does pursue a racially diverse student body, document your admissions process to demonstrate that race was not used in admissions decisions should your process be challenged. Train admissions teams to ensure that they understand how race-neutral factors are being used in the process and document that training.  

4. Ensure that those making admissions decisions are not provided with aggregate racial information of the incoming class until all admissions decisions have been made, including those concerning waitlisted students. The Harvard decision technically is only about the decisions to admit students to the class, not about decisions concerning students on the waitlist, but the same analysis would apply to decisions for waitlisted students. Other staff who are responsible for outreach, recruiting and yield may receive aggregate racial information to engage in non-admissions activities.

5. Ensure that your admissions office is working closely with appropriate legal support from inside or outside the institution to review selective admissions policies and practices to mitigate risk.

The Harvard decision is just the beginning

It is clear that there will be much more written on what it means to engage in selective admissions practices that comply with the Supreme Court’s new view of the law. Institutions with a mission that includes educating racially diverse students will have to work harder than ever to ensure that their efforts comply with the US constitution while furthering this important aspect of their mission.

Audrey J. Anderson is an attorney at Bass, Berry & Sims where her practice focuses on representing colleges, universities and educational institutions. She is the former vice-chancellor, general counsel and university secretary for Vanderbilt University.

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