In a 6-3 decision on June 29, the Supreme Court handed down its ruling in Students for Fair Admissions v. President and Fellows of Harvard College, holding that race-conscious admissions programs at both Harvard University and the University of North Carolina violated the equal protection clause of the Constitution.

Although affirmative action in higher education theoretically remains constitutional for the time being, in practical terms, the Court’s ruling means that there are few, if any, circumstances in which institutions can explicitly consider an applicant’s race when making an admissions decision. Direct considerations of race in educational contexts beyond admissions are likely to face the same fate, though some alternative avenues for promoting diversity appear to remain available.

In his majority opinion, Chief Justice John Roberts  noted  Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, or national origin in federally funded programs or activities, forbids the same conduct that is prohibited under the Constitution. As a result, affirmative action programs at private institutions must meet the same constitutional standards that apply to public schools. According to the majority opinion, neither Harvard nor UNC met the test for several reasons.

First, the Court held, the goals of the admissions programs – such as better educating students through diversity or training future leaders – were too vague to allow sufficient judicial review.

Second, the Court found that the race-conscious admissions programs negatively impacted certain students and engaged in stereotyping based on the misguided notion that minority students consistently share the same viewpoints.

Finally, the Court was particularly concerned that the admissions programs had no ending date and therefore could continue indefinitely. As a result, the Court found that the Harvard and UNC admissions programs violated the equal protection clause of the Constitution because they “lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.”

In contrast, the dissenting Justices argued that the equal protection clause is intended to guarantee racial equality and that the Court’s precedents have long recognized that the limited use of race is essential to educational equality. In criticizing the majority opinion, the dissent contended that the Court’s ruling “cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society.”

Given the limitations imposed by the Court’s analysis, it will remain extremely difficult, if not impossible, for institutions to craft programs that are sufficiently narrow in scope to pass constitutional muster. Nevertheless, the Court’s decision did preserve some options for institutions of higher education seeking to promote diversity. In particular, the majority opinion left the door open for institutions of higher education to consider an applicant’s lived experiences, including those referencing race:
 
Unfortunately, the opinion provides minimal guidance on how institutions may exercise this option when making admissions decisions. Meanwhile, other mechanisms for promoting diversity in higher education appear to remain available, including going test optional, eliminating legacy admissions, and engaging in targeted recruiting via partnerships with local schools, college preparation programs or similar efforts.

Less clear is the legal status of another commonly discussed option for increasing diversity at colleges and universities, namely relying on preferences based on factors other than race, such as socioeconomic status or similar characteristics. Recently, the Fourth Circuit Court of Appeals upheld a race-neutral admissions policy at a public high school in Virginia that had relied on factors such as income status and attendance at historically underrepresented high schools. The Fourth Circuit’s decision reversed a lower court’s ruling that the policy violated the equal protection clause because it discriminated against Asian American students and was adopted with discriminatory intent. Regardless of whether or not the Supreme Court accepts the expected appeal in the case, race-neutral preferences are likely to become the new legal battleground in the affirmative action wars.

The Harvard lawsuit began in 2014, when Students for Fair Admissions, an advocacy group that opposes affirmative action, sued the university, claiming its admissions program unlawfully discriminates on the basis of race, particularly with respect to Asian American students. After a highly publicized trial, a federal district court ruled in favor of Harvard, a decision that was subsequently upheld by an appellate court. Similarly, a district court ruled in favor of UNC, after which the case went directly to the Supreme Court to be heard in conjunction with the Harvard case. NAICU joined an amicus brief in support of both Harvard and UNC.