Supreme Court Strikes Down Race-Conscious Admissions Policies

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

Joel T | 7/5/2023 10:56:28 AM

David S., I feel like I have answered your questions rather clearly, but I I haven't heard why you believe discrimination and racism of this nature was okay.

Further, Harvard admissions officers examine and consider a range of information, including academic achievements and extracurricular activities. Personal essays, recommendations from teachers and guidance counselors, and applicant interviews are also considered by a diverse, 40-person committee. Therefore, I do believe they could do a pretty good job of measuring someone's merit and character utilizing all of those data points without taking race into account.

The court case was quite literally brought before the court because it was demonstrable that Asian students, in particular, were not being admitted simply due to their race. That was part of the facts of the case that were presented. The majority opinion stated, "Respondents' race-based admissions systems also fail to comply with the Equal Protection Clause's twin commands that race may never be used as a 'negative' and that it may not operate as a stereotype. The First Circuit found that Harvard's consideration of race has resulted in fewer admissions of Asian-American students. Respondents' assertion that race is never a negative factor in their admissions programs cannot withstand scrutiny. College admissions are zerosum, and a benefit provided to some applicants but not to others necessarily advantages the former at the expense of the latter."

Raymond G | 7/3/2023 11:33:35 AM

Legacy admissions should be dwelt with separately from affirmative action. If you believe it's wrong then why would two wrongs make a right? Affirmative action discriminates against people for their immutable race. The solution starts with the family all the way down to preschool. I see thousands of dollars thrown to minorities (what we were called years ago before all this division) and they keep having lower success rates. No student is suddenly going to be college ready right after high school if they did not get the mindset early on. It is not the money but the culture that needs to change. They need to be given the opportunities not simply cross the finish lines at the same time. Finish lines that keep arbitrarily changing to have outcomes / specific numbers to qualify for more funding. So Legacy admissions is wrong despite that it is also a benefit to any and all races, religions, etc? Over time this is changing and we see more and more diversity and we've come along way. However, the politics and media today is leading people to believe that no progress has been made. It seems only one side has a voice in today's media. That should raise a flag to all. It's reasonable to think that not one side or the other has all the answers. There is a bit of truth to each. “There are no solutions, there are only trade-offs; and you try to get the best trade-off you can get, that's all you can hope for.” - Thomas Sowell

David S | 6/30/2023 5:49:09 PM

Joel - Aside from the fact that it’s rather unrealistic to expect the Admissions staff to have the time to judge the content of character of tens of thousands of applicants, what real evidence do you have that students were being rejected on the basis of race?

And what comes next? A lawsuit from full payers who resent that their money helps to fund need-based aid? The door has unquestionably been opened for that now, SCOTUS has sent the message that diversity is not to be valued in higher ed.

Joel T | 6/30/2023 5:11:29 PM

David, much like the court said today I believe each student should be treated based on his or her experiences as an individual - not on the basis of race - and they should be evaluated on their merits and content of character.

David S | 6/30/2023 3:1:37 PM

Joel - the schools you mention receive 25 or more applications for every seat they have available. They reject enough students with perfect GPA's and scores to populate 3 more freshman classes. When you get that many more qualified applicants than you have room for, some will get rejected, just as we've all been turned down for jobs that we were fully qualified for.

Help me understand what a school is supposed to do under such circumstances. Yes, it's a first world problem, but those schools aren't going to grow their population ten times over just so that everybody gets the answer they want.

Joel T | 6/30/2023 2:53:07 PM

An Asian student who scored a 1590 out of 1600 on the SAT, with a perfect score on the math section, and had a combined with a 4.65 high school GPA was denied admissions to MIT, CalTech, Princeton, Harvard, Carnegie-Mellon and U.C. Berkeley based on the simple fact that he was Asian.

For those that decry this decision, I challenge them to explain why discrimination and racism of this nature is okay.

David S | 6/30/2023 12:7:07 PM

So....those who applaud this decision, what are we going to replace affirmative action with? Because it sure won't be a level playing surface.

Darren C | 6/30/2023 11:20:29 AM

As expected, when it comes to political division and our SCOTUS, no ruling is as clear cut as it seems. People will always be divided based on their party affiliations and personal interests and agendas.

That said, many of the general sentiments in this ruling sound correct. "Eliminating racial discrimination means eliminating all of it" Correct, and enacting Race-conscious admissions would have led to just the opposite. Also, they went on "to stress that institutions need to base their admissions process on an applicant’s individual experiences." That seems not only reasonable, but a good place to start. What all this means exactly and how it will be carried out is yet to be seen. Some institutions will move forward in a reasonable, fair way, others will continue to push their agenda's regardless.

Basing decisions like these in race has been and always will be used as a divisive tactic. If people aren't yet comfortable looking at each other in a colorblind way, then a forced court ruling won't change that.

Armand R | 6/30/2023 9:14:22 AM

“In other words, the student must be treated based on his or her experiences as an individual — not on the basis of race.” ~ Justice John Roberts
“I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.” ~ Dr. Martin Luther King Jr.
A step in the right direction.

Sierra B | 6/29/2023 3:50:25 PM

If they really cared about "colorblindness" in higher education, they would have abolished legacy admissions. 70% of Harvard's legacy applicants are white. They don't want to talk about that.

James H | 6/29/2023 2:45:02 PM

It is a day which should not have come. More problematic is legacy admissions and athletic admissions at elite colleges. We took two steps backwards today.

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