The Supreme Court to Consider the Use of Race in Admissions in SFFA v. Harvard & UNC
The U.S. Supreme Court is set to rule on the use of race in admissions decisions among both public and private institutions of higher education. Students for Fair Admissions (SFFA) claims that the admissions processes for Harvard College (Harvard) and University of North Carolina- Chapel Hill (UNC) violate Title VI of the Civil Rights Act of 1964, which prohibits institutions that receive federal funding from discriminating on the basis of race, color, or national origin. Additionally, SFFA claims that UNC also violates the Equal Protection Clause of the 14th Amendment, which prohibits states from denying equal protection to those within its jurisdiction. SFFA claims the universities violate these provisions by unfairly using race to give significant preference to underrepresented minority applicants, while ignoring race-neutral alternatives to achieve a diverse student body. They claim these practices adversely impact white and Asian-American applicants. SFFA seeks the elimination of the use of race as a factor in admissions and a mandate by the Supreme Court that a university must document that race-neutral alternatives would cause a dramatic sacrifice to academic quality or the educational benefits of overall student-body diversity. Both Harvard and UNC maintain similar goals of educating students to become leaders of a diverse world. Harvard conducts a whole-person review where every applicant is evaluated as a unique individual, applicants may choose to disclose their race and/or ethnicity, and Harvard may take race into account. UNC maintains they aim to enroll applicants across multiple dimensions, including diverse “experiences; ideas; backgrounds; socioeconomic status; racial and ethnic background; and first-generation status.”
In both cases, the District Courts ruled in favor of the universities for following established U.S. Supreme Court precedent. SFFA appealed its case against Harvard, which was decided first, to the U.S. Court of Appeals for the First Circuit, which upheld the decision made by the lower court. After the District Court for the Middle District of North Carolina decided in favor of UNC as well, SFFA preemptively joined the UNC decision with the Harvard case in its petition to the Supreme Court, which agreed to hear both cases. The oral arguments are scheduled to take place on October 31, 2022.
Currently, Supreme Court precedent has established that universities may use race as a factor in the admissions process if the use passes the “strict scrutiny” standard, meaning the institution must have a “compelling governmental interest” and the process is “narrowly tailored” to meet this interest. Harvard and UNC claim a compelling governmental interest in having a diverse student population to achieve racial diversity’s educational benefits, which the Supreme Court has found to be a compelling governmental interest going back to 1978. To achieve the “narrowly tailored” standard, institutions must evaluate each applicant holistically as an individual, and race may be considered flexibly, not as a defining feature of an application. In the seminal 2003 University of Michigan set of cases, the Supreme Court explained that a university may consider race or ethnicity only as a “plus” in the application with all other factors of diversity also meaningfully considered. Additionally, institutions must also show good faith consideration of workable race-neutral alternatives that will achieve the educational benefits of diversity they seek. As recently as 2016, the Supreme Court affirmed that the University of Texas at Austin could continue considering race as a factor of achieving a diverse student body, so long as the university can show a “‘nonracial approach’ would not achieve its interests in obtaining the educational benefits of diversity.”
If the Supreme Court were to now overturn the use of affirmative action in the admissions process, it would most likely mean that institutions would not be allowed to consider race at all as part of its holistic review of applicants. In many instances this would require institutions to redesign their admissions processes. It remains unclear how institutions could consider each applicant’s unique set of circumstances, backgrounds and foundational experiences apart from a consideration of race. A decision to prohibit the consideration of race as a factor in admissions may cause institutions of higher education to consider alternative methods aimed at mitigating declines in student diversity that are predicted to occur as a result of such a decision. Some suggestions include utilizing percentage plans which guarantee admission to top-ranked students, such as the top 10% of their high school class; admitting more students from low-income and in-state high schools; and guaranteeing admission to students with certain standardized test scores. Ironically, in the Fisher case the University of Texas at Austin argued that they had already implemented some of those measures and failed to achieve the educational benefits of a diverse student body absent consideration of race as a factor within a factor. For other institutions, the Supreme Court’s decision may have little, if any, impact. Some states, such as California,  Florida, and Michigan after the Bollinger cases, have passed state statutes and constitutional amendments banning the consideration of race in admissions. Based upon a decline in students from underrepresented backgrounds reported California and Michigan after such bans, UConn anticipates that a ban on the consideration of race within a holistic admissions process would result in an impending decline in the diversity of the student body. It is not known precisely when the Supreme Court will release a decision, but it will likely be mid-2023.
By Alexandra Quental, Fall 2022 Intern with the Office of the General Counsel, and Lesley N. Salafia, Senior Associate University Counsel and Director of International Legal Relations.
 Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll. (Harvard Corp.), 397 F. Supp. 3d 126, 132 (D. Mass. 2019).
 Students for Fair Admissions, Inc. v. Univ. of N. Carolina, 567 F. Supp. 3d 580, 585-86 (M.D.N.C. 2021).
 Students for Fair Admissions (SFFA) v. University of North Carolina at Chapel Hill, Lawyers’ Committee for Civil Rights Under Law, https://www.lawyerscommittee.org/students-for-fair-admissions-sffa-v-university-of-north-carolina-at-chapel-hill/.
 Students for Fair Admissions, 397 F. Supp. 3d at 133 (stating their goal is to educate citizens and citizen-leaders for our society and can accomplish this goal through including diversity in classes, based on different academic interests, belief systems, political views, geographic origins, family circumstances, and racial identities); Students for Fair Admissions, 567 F. Supp. 3d at 655 (stating their mission is to “… teach a diverse community of … students to become the next generation of leaders” by enrolling a diverse student body, which empowers students to navigate a complex, diverse, and inclusive world).
 Students for Fair Admissions, 397 F. Supp. 3d at 136, 137.
 Students for Fair Admissions, 567 F. Supp. 3d at 597.
 Admissions Case, The University of North Carolina, https://admissionslawsuit.unc.edu/lawsuit/background/; Students for Fair Admissions, 397 F. Supp. 3d at 204.
 Admissions Case, The University of North Carolina, https://admissionslawsuit.unc.edu/lawsuit/background/.
 The cases have been decoupled, however, because Justice Jackson recused herself from the Harvard suit due to her service on Harvard’s board of overseers. Ariane de Vogue, Supreme Court sets Oct. 31 arguments for landmark college affirmative action cases, CNN Politics (Aug. 3, 2022, 1:26 PM), https://www.cnn.com/2022/08/03/politics/affirmative-action-supreme-court-harvard-north-carolina/index.html.
 Grutter v. Bollinger, 539 U.S. 306, 326 (2003).
 Admissions Case, The University of North Carolina, https://admissionslawsuit.unc.edu/lawsuit/background/; Harvard Admissions Lawsuit, Harvard, https://www.harvard.edu/admissionscase/fact-check-sffa/.
 Regents of Univ. of California v. Bakke, 438 U.S. 265, 314 (1978).
 Grutter, 539 U.S. at 337; Brief for the College Board et al. as Amicus Curiae at 23, Students for Fair Admissions v. President & Fellows of Harvard College, ____ U.S. ___ (____).
 Grutter, 539 U.S. at 334, reaffirming Bakke, 438 U.S. at 317.
 Grutter, 539 U.S. at 339.
 Fisher v. University of Texas, 579 U.S. 365, 387-88 (2016).
 Brief for the College Board et al. as Amicus Curiae at 30, Students for Fair Admissions v. President & Fellows of Harvard College, ____ U.S. ___ (____).
 Doreen S. Martin et al., Supreme Court to Hear Challenge to Use of Race in Admissions, Venable LLP (Feb. 2, 2022) https://www.venable.com/insights/publications/2022/02/supreme-court-to-hear-challenge-to-use-of.
 Fisher, 579 U.S. at 372-4.
 https://www.nytimes.com/2022/08/26/us/affirmative-action-admissions-supreme-court.html; https://edsource.org/2020/dropping-affirmative-action-had-huge-impact-on-californias-public-universities/642437