In two recent decisions, the United State Supreme Court ruled that the use of race as a factor in the college admissions process is unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. Although each decision found that the university violated the Equal Protection Clause, the Court did not entirely overturn its previous ruling in Grutter v. Bollinger, where it held that the use of an applicant’s race as one factor in an admissions policy does not violate the Constitution. Nonetheless, the Court placed stricter limits on how race could be used in that process.

The Grutter decision acknowledged that student diversity was a compelling state interest that justified considering race in university admissions. Nonetheless, the Court cautioned that those considerations could not devolve into illegitimate stereotyping or discrimination against other minority groups. Race is only to be considered if advantageous for the candidate. Lastly, the Court said race-based admission processes needed to be limited in time, and the Court expected that twenty-five years after the decision, these processes should no longer be necessary.

Based on Grutter, the Court in Students for Fair Admissions, Inc. v. President of Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina said that the universities needed to show how their admissions programs: (1) allowed for strict judicial scrutiny, (2) did not use racial stereotypes, (3) did not negatively impact other minority groups, and (4) had an endpoint. The Court found that the respondents’ admissions systems failed all four of these criteria and must therefore be invalidated under the Equal Protection Clause of the Fourteenth Amendment, for the following reasons:

• The Court held that both programs failed the strict scrutiny test because the benefits that the admissions practices allegedly sought to achieve were so amorphous that it was unclear how courts would be able to measure any of these goals or when they had been reached. The admissions programs also needed to articulate a meaningful connection between the means they employed and the goals they pursued.
• The Court found that when a university admits students based on race, it engages in the assumption that students of a particular race, because of their race, think alike, which the Court viewed as a stereotype.
• The Court found that the programs failed the negative impact test because the programs resulted in fewer Asian students being admitted than otherwise would have been the case.
• The Court noted both institutions’ programs failed the tests set in Grutter because neither program had an endpoint.

However, the Court’s opinion did identify ways race could be used as a factor in admissions. For instance, applicants could discuss how race affected their lives if that discussion is concretely tied to a quality of character or unique ability the applicant can contribute to the university.

While the Court’s opinion in this case applies specifically to college admission programs, it could impact hiring practices and employer sponsored diversity, equity & inclusion (DEI) programs in the employment context. Immediately after the decision, a letter was issued by Attorney Generals from 13 states purporting to put Fortune 100 companies on notice that the new ruling could result in greater scrutiny of DEI efforts to the extent that they promote racial quotas in hiring, recruiting, retention, and advancement. Meanwhile, while recognizing racial quotas were already illegal in the employment context under Title VII of the Civil Rights Act of 1964, various employment law firms did caution for a careful review of companies’ DEI initiatives in light of the Students for Fair Admissions, Inc. ruling, considering its guidance on future rulings concerning challenges to preferential hiring practices and DEI initiatives.

Students for Fair Admissions, Inc. v. President of Fellows of Harvard College, No. 20-1199 (June 29, 2023)
Students for Fair Admissions, Inc. v. University of North Carolina, No. 21-707 (June 29, 2023)
Grutter v. Bollinger, 539 U.S. 306 (2003)