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Greetings, Court Fans!

As promised last week, we’re back today with a summary of Students for Fair Admission, Inc. v. President and Fellows of Harvard College (No. 20-119), where a 6-3 Court held that Harvard’s and the University of North Carolina’s race-conscious admission policies violated the Equal Protection Clause. Given the case’s importance—to say nothing of the sheer volume of the opinions, concurrences, and dissents, which collectively run well over 200 pages—we’re devoting this issue of the Update just to SFFA. We’ll be back after the July 4^th holiday to resume our coverage of the rest of the Court’s end-of-term decisions.

The Court’s decision resolved two separate cases, involving constitutional challenges to Harvard’s and the University of North Carolina’s respective undergraduate admissions processes. Though the ultimate result is the same, the two schools’ policies differ slightly. At Harvard, admissions personnel initially assign applicants rankings in five categories (e.g., academics, and athletics) as well as an “overall” ranking. When assigning the overall score, an applicant’s race may be taken into account. From there, admissions subcommittees review each application again and make recommendations to the full admissions committee. Those subcommittees too may take race into account. Next, the full admissions committee reviews the applicants, which includes considering the overall applicant breakdown by race to ensure minority admissions remain stable year to year. Finally, once the full committee has tentatively voted on each candidate, the racial breakdown of potential admits is disclosed, and the committee completes a “lop,” in which the final class is winnowed down. During the “lop,” the only information considered is the applicant’s legacy status, recruited athlete status, financial aid eligibility, and race.

UNC follows a similar process. Admissions officers initially review candidates and assign each one a numerical rating, considering race and ethnicity as relevant factors. Each officer then makes a recommendation about whether an applicant should be admitted, using race as a “plus” factor. Finally, a review committee considers each candidate and the officers’ recommendations. The review committee may also consider each applicant’s race in rendering a final decision.

Students for Fair Admissions (SFFA), a nonprofit organization formed specifically to challenge race-conscious admissions practices, sued Harvard and UNC on the same day. Because UNC is a public college, SFFA based its suit directly on the Equal Protection Clause of the Fourteenth Amendment. But Harvard is a private institution—and hence not a state actor for purposes of the Fourteenth Amendment—so SFFA suit it under Title VI of the Civil Rights Act of 1964, which (the parties assumed) applies the standards of the Equal Protection Clause to all institutions (like Harvard) that accept federal funds. In Harvard’s case, the District Court and First Circuit agreed that Harvard’s admissions policies did not violate the Equal Protection Clause (through Title VI). In UNC’s case, the District Court reached the same result. The Supreme Court then granted cert in both cases, in the case of UNC, before the Fourth Circuit even had a chance to weigh in.

The Court reversed in a lengthy opinion by Chief Justice Roberts joined by the five other conservative justices. Roberts first addressed the threshold issue of whether SFFA had standing, requiring it to show it suffered an injury that is traceable to the universities’ conduct and that could be redressed by a favorable decision. SFFA suffered no injury itself; instead, it claimed organizational standing based on injuries to its members. That required it to show not only that its members would have had standing to sue in their own right, but also that SFFA’s interest in protecting its members was germane to its organizational purpose and that its suit did not require its members’ direct participation. The Chief concluded that SFFA met those requirements, rejecting UNC’s argument that SFFA was not a “genuine membership organization,” because it was not directly controlled and funded by its members. Roberts explained that organizational standing requires only that an organization identify its members and represent them in good faith; there is no additional requirement regarding the level of control those members must exert over the organization.

Turning to the merits, the Chief began by attempting to situate the Court’s decision within the history of the Fourteenth Amendment and its interpretation over time. Roberts asserted that when the Fourteenth Amendment was ratified, its “transcendent aim” was absolute equality among citizens regardless of race or color. While the Court initially upheld that ideal in early cases, it faltered in Plessy v. Ferguson (1896), holding that racial segregation was permissible so long as the accommodations for different races were otherwise equal. For the next sixty years, segregation remained the law of the land, until the Court righted its historic wrong in Brown v. Board of Education (1954), where it recognized that separate cannot be truly equal. Following Brown, Roberts characterized the Court’s decisions as gradually chipping away at the idea that the Fourteenth Amendment permitted any racial classifications.

Exceptions to this general prohibition on racial classifications are subject to a “daunting” analysis known as “strict scrutiny.” Strict scrutiny proceeds in two steps. First, the proponent of any racial classification must show that the practice is intended to further a compelling government interest. Second, the proponent must show that the use of race is “narrowly tailored” (i.e., necessary) to achieve that interest. Roberts identified only two situations where the Court has upheld racial classifications under strict scrutiny: (1) where the race-based classification is necessary to remediate past discrimination that violated the Constitution or a statute; and (2) where the race-based classification is necessary to avoid imminent harm, such as a prison riot.

Chief Justice Roberts then considered how the Court has applied these principles in the context of college admissions. In Bakke v. University of California (1978), an applicant denied admission to the University of California’s medical school sued the University, arguing that the school’s admissions policies violated the Equal Protection Clause because the school set aside a certain number of slots each year solely for minority applicants. The case deeply divided the Court, with six opinions and no clear majority. Justice Powell announced the judgment of the Court and issued his own opinion, joined by no other justices. He analyzed the four “compelling interests” the medical school had identified to support its use of racial quotas, rejecting three of them as unsupported or amorphous. But he concluded that one of UC’s governmental interests had merit: the “education benefits that flow from a racially diverse student body.” Powell nonetheless concluded that the school’s racial quotas were not narrowly tailored to that interest, suggesting that while race could be a “plus” factor in reviewing an applicant’s file, it had to be considered flexibly with “all pertinent elements of diversity in light of the particular qualifications of each applicant.”

Bakke’s fractured decision led to decades of confusion, as lower courts were unsure whether Justice Powell’s solo opinion controlled. The Court settled that uncertainty in Grutter v. Bollinger (2003), a decision that largely endorsed Powell’s reasoning. In Grutter, the Court considered the University of Michigan law school’s admissions system. The Court there credited the law school’s assertion that “diversity is essential to its educational mission.” But while Grutter upheld Michigan’s race-conscious admission program, Chief Justice Roberts emphasized several limitations on that holding: First, race-conscious policies could not utilize “illegitimate stereotyping” or operate on the premise that any racial group holds some characteristic, unified viewpoint. Second, race-based admissions could never consider race as a negative characteristic against a candidate. And finally, Grutter held that race-conscious admissions programs must eventually come to an end, suggesting that in twenty-five years—i.e., 2028—“the use of racial preferences will no longer be necessary.”

Applying Grutter’s principles to the cases at hand, Chief Justice Roberts concluded that both universities’ practices violated the Equal Protection Clause for three (sets of) reasons. First, the goals of both schools’ admissions programs were not “sufficiently measurable to permit judicial review.” In Roberts’s view, the schools’ stated purposes for their policies—training future leaders, producing new knowledge through diverse viewpoints, and promoting the robust exchange of ideas—were commendable. But they were not “sufficiently coherent for purposes of strict scrutiny,” because there was no way to concretely measure whether those goals were being attained. The Chief also concluded that both schools failed to show a “meaningful connection” between their educational goals and the race-based admissions methods they employed. In particular, he questioned how the schools’ use of broad racial categories like “Asian” instead of “East Asian” or “Chinese” could allow the schools to achieve their goals. While acknowledging that the Court has historically deferred to the educational judgment of universities, Roberts believed that deferring here would require abdication of the Court’s role.

Second, both schools’ use of race in admissions amounted to stereotyping, and necessarily used race as a negative factor for some applicants. Both the District Court and First Circuit agreed that Harvard’s policies resulted in a decrease in the number of Asian Americans admitted to the school. Because admissions are essentially zero sum, granting preference to some races necessarily disadvantages others. Roberts suggested that the schools’ agreement that the demographics of their incoming classes would shift if race was not a permissible consideration demonstrated that some applicants were begin rejected because of their race. Relatedly, the Chief concluded that the schools’ admissions policies had devolved into racial stereotyping, treating race as a valuable attribute in and of itself. That treatment could only be premised on the assumption that all members of a given race have some favorable or unfavorable characteristic in common, an assumption the Chief concluded was at odds with the Fourteenth Amendment.

Finally, Roberts concluded that Harvard’s and UNC’s race-conscious admissions policies were impermissible because they “lack a logical end point.” Grutter had approved of race-conscious admissions policies on the assumption that those policies would at some point end. But at Harvard, for example, the relative demographic breakdown of each class was essentially the same from 2009 through 2018. In Roberts’s view, that showed that the school’s race-conscious programs effectively amounted to “outright racial balancing,” which is unconstitutional. The stability of the demographic breakdown over time also showed that Harvard was not progressing toward, and would never plausibly meet its goal of achieving, sufficient diversity to end its consideration of race. To the extent that the schools offered other potential endpoints for race-conscious admissions, Roberts found them to be insufficiently specific and measurable. He also explained that Grutter’s reference to a 25-year time period was not intended as a definitive sunset date, nor did either school offer reasons to believe they would meet their amorphous goals if given another five years.

With those core holdings out of the way, Chief Justice Roberts responded at length to the dissents. First, he rejected the dissents’ contention that ending societal discrimination could constitute a compelling interest under strict scrutiny, an idea that can be traced back to Justice Marshall’s dissent in Bakke but has never been endorsed in any controlling opinion. Roberts also found no merit in the dissenters’ suggestion that race-conscious admissions policies could endure until “racial inequality will end.” According to Roberts, the end result of the dissenters’ analysis would unacceptably require courts to “pick winners and losers based on the color of their skin,” a result the Fourteenth Amendment does not permit.

Finally, in what is sure to be a heavily scrutinized closing note, the Chief Justice emphasized that the Court’s holding did not prohibit universities “from considering an applicant’s discussion of how race affected his or her life.” But, he warned, any benefit given to an applicant’s discussion of that issue must be tied to the particular applicant’s attributes as shown by that student’s response to specific circumstances, rather than the mere fact of the student’s race.

Justices Thomas, Gorsuch, and Kavanaugh all filed concurrences. We’ll start with Thomas’s, which he treated as something of a victory lap. Having dissented in Grutter, he portrayed the Court’s opinion as vindicating his view that the Constitution is “colorblind.” His concurrence offered an “originalist defense” of that perspective, presenting a history of the Fourteenth Amendment that Thomas asserted shows that all race-based classifications violate the Equal Protection Clause regardless of whether they are intended to be discriminatory or remedial. He argued that the framers of the Fourteenth Amendment intended to bar all distinctions based on race, and early Supreme Court decisions interpreting the Amendment recognized as much. While the Court’s commitment to “colorblindness” waned with Plessy, that decision was wrong from the start. Thomas also rejected the “antisubordination” view of the Fourteenth Amendment, which he described as the idea that the Amendment only forbids laws that “hurt, but not help, blacks.” At bottom, Thomas argued that race-based categorization is inherently pernicious because it always risks devolving into the same logic that allowed segregation. And he asserted that favoring one racial group in admissions is poor policy because it may result in otherwise unprepared students underperforming once they arrive at college and because it necessarily disfavors others. Thomas thus praised the Court’s opinion for effectively overruling Grutter, something that Chief Justice Roberts’s opinion did not explicitly purport to do.

Justice Gorsuch (joined by Thomas) wrote separately, arguing that while the Court’s analysis focused on the Equal Protection Clause of the Fourteenth Amendment, the text of Title VI of the Civil Rights Act of 1964 yields the same result. Roberts’s majority decision did not reach this issue, because the parties essentially assumed that Title VI applied the same standard as the Fourteenth Amendment. The text of Title VI provides that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” In Gorsuch’s view, the prohibition on distinctions “on the ground of race, color, or national origin” prevented any distinctions, whether they favor or disfavor certain groups. He also noted that his interpretation of Title VI was consistent with the Court’s interpretation of Title VII, which prohibits discrimination in employment. Applying that standard here, Gorsuch asserted that Harvard’s and UNC’s admissions policies impermissibly treated some students differently based on overbroad racial categories created by “bureaucrats.” While the parties had largely litigated the extent of racial categorization, there was no serious dispute that the universities did employ some racial categorization, which in Gorsuch’s view violated Title VI. The parties’ confusion, he explained, was largely caused by Bakke and Grutter, where several opinions treated Title VI and the Equal Protection Clause as “coterminous.”  But Gorsuch argued that the Court never even needed to address the Fourteenth Amendment in Bakke or Grutter because Title VI was sufficient to decide those cases. And Title VI, he asserted, independently prohibits any classifications based on race.

Justice Kavanaugh provided a relatively brief concurrence, acknowledging the continuing problems of racial discrimination and inequality, but arguing that the Court’s holding was consistent with prior “precedents on race-based affirmative action in higher education.” While the Court in Bakke and Grutter had concluded that race-based affirmative action could, in some circumstances, survive strict scrutiny, the controlling opinions in both cases emphasized that the interests supporting such programs would wane over time. Thus, the “compelling interest” supporting race-conscious admissions programs was always expected to sunset after some period.

Justices Sotomayor and Jackson penned fiery dissents, each joined by their two fellow liberal Justices. We’ll start with Sotomayor’s. She outright rejected the Court’s characterization of the Fourteenth Amendment as “colorblind,” arguing that that provision was always intended—and has always been understood—to allow some considerations on the basis of race. Early laws enacted under the Fourteenth Amendment were specifically intended to benefit Black Americans. And historical discussions of equality among races must be understood in the context of what the Fourteenth Amendment was intended to do: Eliminate laws in southern states that stripped Black citizens of their rights and restore the privileges that had been taken from them. Later, when the Court in Brown overturned Plessy’s separate-but-equal doctrine, its analysis was clearly race conscious. Indeed, Sotomayor asserted that many of the same colorblind arguments the majority sanctioned in this case were offered in early school-integration cases, where the Court rejected them as inconsistent with Brown.

Justice Sotomayor then walked through the more recent decisions in Bakke, Grutter, and Fisher v. University of Texas (2016), all of which upheld race-conscious admissions practices. Those decisions rightly recognized the importance of diversity to institutions of higher education and the importance of academic freedom and engaging with different viewpoints. Sotomayor explained that segregation remains a practical reality in many elementary and secondary schools. Given the close relationship between racial and economic inequality, students in functionally segregated schools often have fewer opportunities than white students in more privileged areas. Both UNC and Harvard also have their own histories of racial exclusion. As a result, modern race-conscious admissions programs are necessary to remedy both historical and continuing patterns of inequality. As to the specific admissions programs at issue, Sotomayor would have upheld them as narrowly tailored: At both schools, race is considered in a limited way as a “plus” factor as a part of a holistic review of each applicant, and race is not used as a stereotype. Finally, Sotomayor criticized the majority for effectively overruling Bakke and Grutter without explaining why the principles of stare decisis (or adherence to prior precedents) would allow such a departure. In particular, she noted that the arguments adopted by the majority were mirrored most directly in the dissents from those earlier cases. She ended her dissent with the assertion that the Court’s “unjustified exercise of power . . . will only serve to highlight the Court’s own impotence in the face of an America whose cries for equality resound.”

Justice Jackson also dissented (though her dissent was technically limited to the UNC case, because she was recused from the Harvard one). She began by tracing the legacy of slavery from the Jim Crow South through housing and mortgage discrimination in the 1930s to the 1960s and beyond. “History speaks,” Jackson argued, and the repercussions of slavery are still felt today. Black families’ median wealth is significantly lower than white families’, and Black families trail white families on other indicators of economic wellbeing like home ownership. Given that context, she posed a hypothetical about two UNC applicants, one from a Black family and one a seventh-generation white legacy candidate whose ancestors owned slaves. Due to the adversity facing Black Americans, the former student would face serious disadvantages that would otherwise manifest in the admissions process. UNC’s admissions policies let admissions officers take those disadvantages into account, together with the candidate’s race. That policy allows the school both to remedy past discrimination by providing historically disadvantaged groups with greater opportunities, and it allows the school to provide a better education by maintaining an environment with diverse viewpoints. In striking down that policy and all others like it, the Court betrays a “let-them-eat-cake obliviousness,” effectively “pull[ing] the ripcord and announc[ing] ‘colorblindness for all’ by legal fiat.” Jackson thus worried that the majority’s decision “arrests the noble generational project that American universities are attempting” and “launches, in effect, a dismally misinformed sociological experiment.”