History

The use of affirmative action in higher education has a long and contentious history. Despite decades of debate and litigation, the Supreme Court has, in some cases, upheld the limited use of race to promote diversity at colleges and universities. Before the Harvard decision, the Court’s most recent pronouncement on this issue came in 2016 in Fisher v. University of Texas at Austin where the Court approved a race-conscious admissions program at the University of Texas at Austin.

Generally, the constitutionality of governmental policies based on race are evaluated under the equal protection clause of the Constitution. Under judicial precedent, laws that contain classifications based on race are subject to strict scrutiny. Such laws will survive strict scrutiny only if they: (1) further a compelling governmental interest; and (2) are narrowly tailored to meet that interest. Prior to the ruling in the Harvard case, the Supreme Court had held that diversity in higher education serves a compelling governmental interest and therefore meets the first prong of this test.  However, it remained extremely difficult for institutions of higher education to demonstrate that their affirmative action programs were sufficiently narrowly tailored to win judicial approval under the second prong of the test.  While this constitutional test is theoretically still in place, the Harvard decision effectively gutted the ability of institutions of higher education to meet either prong of this test. 

Although private colleges and universities are not subject to the same constitutional constraints as public institutions, affirmative action programs at private institutions are just as susceptible to legal challenge on statutory grounds. Under Title VI of the Civil Rights Act, private colleges and universities that receive federal funding are prohibited from discriminating on the basis of race, color, or national origin. Because the federal courts have ruled that Title VI forbids the same activities that are prohibited under the Constitution, affirmative action programs at private institutions must therefore meet the same constitutional standards that apply to public colleges and universities.
 

Recent Developments in the Courts

In 2014, the advocacy group Students for Fair Admissions filed several affirmative action suits in federal court. One such suit involves a claim that Harvard’s admissions program violates Title VI. According to the complaint in the case, Harvard’s holistic race-conscious admissions plan allows schools to hide race discrimination against specific groups, including Asian Americans. The same group also filed a statutory and constitutional challenge against the University of North Carolina.

In 2019, a federal district court upheld Harvard’s race-conscious admissions plan. A federal appellate court affirmed the district court's ruling the following year, finding that the university's policy was consistent with Supreme Court precedent. The Supreme Court consolidated the Harvard and UNC cases for review and ultimately struck down both programs.

Although the decision did not impose an outright ban on race-conscious admissions at colleges and universities, the Court’s reasoning and application of the relevant constitutional test will likely foreclose direct consideration of race in admissions for the foreseeable future. Specifically, the Court held 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.”

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:

[N]othing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. …A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race.

Despite the Court's ruling, a number of additional options remain available to colleges and universities that are seeking to promote diversity, as outlied in guidance frm the Biden Administration described below.

Executive Branch Actions

In addition to litigation in the courts, affirmative action plans at institutions of higher education have long been the subject of various executive branch actions. Under the Obama Administration, the Departments of Education and Justice jointly issued multiple guidance documents explaining proactive steps that colleges and universities could voluntarily take to increase diversity at their institutions. The Trump Administration, however, rescinded those documents and reinstated guidance, previously in effect during the Bush Administration, that sought to discourage the use of race in admissions.

The Trump Administration also took other administrative actions to limit affirmative action programs at institutions of higher education, such as Department of Justice-led Title VI investigations into affirmative action programs at elite institutions of higher education.

In the wake of the Supreme Court’s decision in the Harvard case, President Biden criticized the ruling and directed the Department of Education to examine best practices regarding promoting diversity in higher education.  The Biden Administration has highlighted some of these options in two separate sets of guidance released after the decision was handed down.  The first set of guidance from the Department provides insight into the practices that remain legally permissible on campus.  For example, colleges and universities can continue to promote diversity by: 
 

• Assessing an applicant's experiences and attributes, including those related to race;
• Relying on race-neutral factors;
• Engaging in targeted outreach and recruitment;
• Establishing pipeline or pathway programs;
• Collecting demographic information; and 
• Examining ways to reduce barriers to admissions. 

The second set of guidance reminds institutions of their legal obligations under Title VI of the Civil Rights Act regarding race, color, and national origin discrimination. The guidance, which specifically addresses school programing involving race, appears to be designed to address legal questions that have emerged amidst political battles over diversity, equity, and inclusion (DEI) initiatives, particularly in the aftermath of the Court’s ruling.

Under the guidance, the Department notes that curriculum requirements involving race-related topics are generally permissible so long as such requirements are imposed equally on all students. The guidance also states that Title VI generally does not restrict institutions from holding assemblies, meetings, or listening sessions on race-related topics, nor does the statute prevent campuses from sponsoring or recognizing extracurricular activities and spaces with race-related themes, so long as such activities are open to all students regardless of race.

Despite the guidance, many legal questions remain, and litigation will continue until these questions are resolved. For example, just days after the Court’s ruling, advocacy groups filed a Title VI complaint with the Department alleging that Harvard University’s legacy admissions policy, which favors children of alumni and donors, discriminates against minority students. Meanwhile, some states are banning legacy admissions, while others are placing restrictions on DEI efforts on campus, including scholarship programs that consider race. Likewise, colleges and universities are grappling with the implications of the decision on donor-restricted scholarship funds, early admissions, and other programs on campus.