By Maria Carrasco, NASFAA Staff Reporter ,  Hugh T. Ferguson, NASFAA Senior Staff Reporter

The U.S. Supreme Court (SCOTUS) on Thursday ruled that race can not be considered in college and university admissions, striking down more than 40 years of precedent in a move that will also impact how some postsecondary student financial aid is awarded.

The two cases at the center of the decision were brought by the group Students for Fair Admissions (SFFA) against Harvard University and the University of North Carolina (UNC). In the case against Harvard, SFFA argued that universities should not be allowed to use race as a factor in college admission, and that Harvard unlawfully discriminated against Asian American applicants. In the case against UNC, SFFA argued that the university’s admissions process violates the equal protection clause of the 14th Amendment by using race as a factor in admissions.

Specifically, the majority opinion, penned by Chief Justice John Roberts, states that the court has "permitted race-based admissions only within the confines of narrow restrictions. University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and — at some point — they must end."

The ruling went on to state that the programs in question, developed by Harvard University and the University of North Carolina, "however well intentioned and implemented in good faith — fail each of these criteria."

"Eliminating racial discrimination means eliminating all of it. Accordingly, the Court has held that the Equal Protection Clause applies ‘without regard to any differences of race, of color, or of nationality’— it is ‘universal in [its] application,’” the opinion reads. “For ‘[t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color.’”

Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett joined Roberts in the majority opinion, while Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson dissented.

In her dissent, Sotomayor wrote that the decision "rolls back decades of precedent and momentous progress.”

“It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits,” she continued. “In so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter. The Court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society.”

Notably, however, Roberts wrote in the majority opinion that the decision does not bar institutions from considering how an applicant’s race has impacted their life should such a disclosure be made in the process of applying.

"Nothing 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,” Roberts wrote. “But, despite the dissent's assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today."

Roberts went on to stress that institutions need to base their admissions process on an applicant’s individual experiences.

“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,” Roberts continued. “In other words, the student must be treated based on his or her experiences as an individual — not on the basis of race.”

Sotomayor also indicated that institutions could still find ways to encourage diversity through the admissions process.

“The pursuit of racial diversity will go on,” Sotomayor wrote. “Although the Court has stripped out almost all uses of race in college admissions, universities can and should continue to use all available tools to meet society’s needs for diversity in education.”

President Joe Biden in a press briefing on Thursday strongly disagreed with the court's decision.

"We cannot let this decision be the last word," Biden said, urging colleges and universities to not abandon their commitment to fostering a diverse student body.

"Today I am directing the Department of Education to analyze what practices help build a more inclusive and diverse student body and what practices hold that back," Biden continued. The president went on to argue that practices like legacy admissions “expand privilege instead of opportunity."

Education Secretary Miguel Cardona said the ruling served as a setback in promoting equal opportunity and urged higher education leaders to bolster their efforts to improve student diversity.

“To our higher education leaders reviewing the decision: now is not the time to lessen your commitment to campus communities that reflect the rich diversity of this nation, which enhance the college experience in myriad ways and prepare students from all walks of life to live, work, and lead our democracy together,” Cardona said. “Your leadership and commitment to ensuring our educational institutions reflect the vast and rich diversity of our people are needed now more than ever.”

In a fact sheet distributed Thursday afternoon, the Department of Education (ED) said that it will take a number of steps to help ensure colleges and universities can promote diverse student bodies, including providing resources for colleges and universities “addressing lawful admissions practices,” hosting a national summit on expanding educational opportunity and subsequently releasing a report on best practices and strategies, exploring ways to collect and publish more data on college admissions and enrollment trends, and more. 

NASFAA President and CEO Justin Draeger said NASFAA will work with institutions to ensure they understand these legal ramifications and how they will impact financial aid policies and practices now and in the future.

“The Supreme Court has now ruled on the matter, and we must all respect and uphold the law of the land,” Draeger said. “However, we cannot ignore the fact that racial and ethnic gaps in college access and attainment persist, and these disparities must be addressed, even within this new legal framework. We will continue to work steadfastly to create a just and equitable society and help college campuses to fully live up to their missions and values, while fully complying with the law.”

At NASFAA’s Leadership and Legislative Conference & Expo this February, multiple members shared at a session how their institutions were planning to award institutional aid if race-conscious admission practices were struck down. Others shared their worries that their institutions weren’t preparing at all.

NASFAA, along with other higher education organizations, last year submitted an amicus brief in response to the two cases, arguing that admissions officers considering race in college applications are protected by the First Amendment. The organizations argued that by banning race consideration in the admissions review, student expression would be stifled and many applicants wouldn’t receive the full benefits — such as those whose racial or ethnic identity plays a role in their life experiences.

Advocates for race-conscious admissions and experts fear that today’s decision will make it difficult for some institutions to create diverse classes. The Lawyers' Committee for Civil Rights Under Law, which argued before SCOTUS in October 2022 in support of race-conscious admissions policies, states that eliminating the consideration of race in Harvard University’s process would cause the number of students of color to plummet by 50%, by nearly 1,000 students over four years.

Additionally, a new model from the Georgetown University Center on Education and the Workforce (CEW) found that the most effective way of strengthening diversity at selective colleges — institutions that admit half of applicants or fewer — was to consider race in the admissions process. And if race-conscious admissions policies are banned, CEW found that class-conscious alternatives that create preferences for applicants from lower socioeconomic status families could be used to create diverse classes for Hispanic/Latino and Black/African American students. However it would fail to account for American Indian, Alaska Native, Native Hawaiian, and Pacific Islander students.

Race-conscious admission practices are already banned in California, Florida, Michigan, Nebraska, Arizona, New Hampshire, Oklahoma, and Idaho. In California, which became the first state to ban such policies in 1996, University of California President Michael V. Drake and all 10 chancellors submitted an amicus brief, stating that “despite its extensive efforts” UC struggles to enroll a student body that is “sufficiently racially diverse to attain the educational benefits of diversity” due to the ban.

Rep. Frederica Wilson (D-Fla.), ranking member of the House Higher Education and Workforce Development Subcommittee, said that the ruling posed a “significant setback” for historically underrepresented students.

“This hyper-conservative Supreme Court has rolled back history,” Wilson said. “It pains me to think that as we have fought to reduce racial disparities in this country, all the progress we've made in the past years is in jeopardy.”

Meanwhile, opponents of race-conscious admission policies viewed the ruling as a win.

Rep. Virginia Foxx (R-N.C.), chair of the House Committee on Education and the Workforce, applauded the court’s decision.

“In America, fairness is the key to educational opportunity, where one’s success is judged by merit rather than arbitrary quotas,” Foxx said. “Postsecondary education has been plagued by affirmative action for far too long, and I’m pleased that the Supreme Court has finally upheld the equal protection of students.”

Questions remain for how today’s decision will impact financial aid offices, as federal nondiscrimination law that applies to admissions policies also has implications for how financial aid and scholarships are awarded. 

Members can register now for NASFAA’s July 19 webinar, The Supreme Court Speaks: Understanding the Implications of Race-Conscious Admission Decision, which will delve into the implications for institutional enrollment policy and practice — including recommended strategies and action steps to consider. 

Publication Date: 6/29/2023

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