Affirmative Action Post Harvard & UNC

Date   Jun 29, 2023

Executive Summary: On June 29, 2023, the U.S. Supreme Court struck down both Harvard College’s and the University of North Carolina’s affirmative action programs as they relate to student admissions. Students for Fair Admission, Inc. v. President and Fellows of Harvard College (Harvard) and Students for Fair Admission, Inc. v. University of North Carolina (UNC) will impact diversity efforts beyond higher education institutions.

Factual Background

In 2014, Students for Fair Admissions, Inc. (SFFA) filed suit against Harvard and UNC asserting that by considering race in the student admissions process, the universities intentionally discriminated against Asian-American applicants, in violation of Title VI of the federal Civil Rights Act (Harvard) and the Equal Protection Clause of the 14th Amendment (UNC).


Title VI prohibits colleges and universities that receive federal funding from discriminating on the basis of race, color, or national origin. When applied to universities, Title VI prohibits using race as a factor in admissions “unless the admissions process can withstand strict scrutiny.”

SFFA contends that Harvard’s admissions process unlawfully discriminates against Asian-American applicants through its use of race-balancing and consideration of race as more than a “plus” factor. SFFA argues that Harvard never truly embraced alternative race-neutral admissions processes, despite Harvard’s assertions that these proposed alternatives influence Harvard’s goal of maintaining academic excellence while reducing isolation experienced by underrepresented students. As evidence of this alleged failure, SFFA contends that since Grutter v. Bollinger’s race-based admission procedures have not led to significant progress in achieving educational racial diversity, it should no longer stand as precedent.

Finding no significant evidence of bias against Asian-American applicants, the District Court noted that Harvard “engages in a highly individualized, holistic reviews of each applicant's file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment.” The First Circuit affirmed the District Court decision in favor of Harvard.

University of North Carolina

The Equal Protection Clause bars government entities (which includes public universities) from discriminating on the basis of race. Similar to its claims against Harvard, SFFA alleged that UNC considers race in a manner that unfairly discriminates against white and Asian-American applicants. Specifically, SFFA asserted that race is a poor proxy for an applicant’s life experiences, and the educational benefits of racial diversity are not a compelling interest. As such, UNC’s consideration of race and ethnicity as a “plus” factor in its holistic review process can be similarly, if not better, achieved through race-neutral alternative strategies.

The District Court relied on Grutter in ruling in favor of UNC, finding that its admissions policies were constitutional because the use of race in admission is narrowly tailored to achieve the compelling interest of enrolling a racially diverse student body.

The Supreme Court’s Decision Upends Long-Standing Supreme Court Precedent

The Supreme Court’s decision traced the history of affirmative action in education from ratification of the Equal Protection Clause to the end of “separate but equal” in public education to landmark precedent regarding the use of race as a factor in higher education admissions.

1978: Regents of the University of California v. Bakke

Bakke sued the University of California arguing their medical school’s special admissions program violated Title VI and the Equal Protection Clause because it “operated as a racial quota,” reserving 16 of 100 spots in the class for racial minorities. The Court held that while the use of race as factor in the admissions process is an appropriate means of redressing the effects of past discrimination (i.e., affirmative action), the university’s strict quota system was unconstitutional because it excluded applicants solely because of their race.

The Court’s decision acknowledges that diversity in the classroom is a compelling state interest, but cautioned that setting a quota for minority student enrollment was a step too far.

2003: Grutter v. Bollinger

Following denial of her application for admission to the University of Michigan Law School, Grutter filed suit asserting that the law school used race as a “predominant” factor in admissions, favoring minority applicants. The Court held that the use of race as a factor in admissions is not prohibited by Title VI, the Equal Protection Clause, or Section 1981, if it is narrowly tailored to further the compelling interest of obtaining education benefits arising from a racially diverse student body. Accordingly, the Court opined that the law school employed an individualized holistic evaluation process – assessing all the ways an applicant may contribute to a diverse environment, which included race.

2016: Fisher v. University of Texas at Austin

Fisher sued the University of Texas (UT) alleging that the university’s consideration of race in its holistic review process disadvantaged Fisher (and other white applicants) in violation of the Equal Protection Clause. The Court held that UT’s race-conscious admissions process was lawful because, like that approved of in Grutter, it engaged the compelling interesting of obtaining “the educational benefits that flow from student body diversity,” and the available race-neutral alternatives did not achieve that goal.

2022: Harvard & UNC – A Step Too Far?

The Court rendered a splintered 6 to 3 decision in favor of SFFA. Relying on its decision in Grutter, the Court noted that race-based college admission decisions are permitted within “narrow restrictions.” The policy must satisfy the strict scrutiny test, may not use race as a factor, and must have an end point. The Court determined that Harvard’s and UNC’s admissions programs failed all three prongs. They failed to “articulate a meaningful connection between the means they employ and the goals they pursue.” The race categories are “overbroad,” “arbitrary or undefined” and “underinclusive” with no clear connection between the goal of greater diversity and the admissions process. The Court also found that UNC’s race-based admissions process violated the Equal Protection Clause because race for some students was treated as a negative. Finally, neither program had a “logical end point.”

However, the Court made clear that universities may consider an applicant’s discussion of how their race impacted their life as part of the application process, provided this information is limited to an assessment of the applicant’s “character” or “unique ability to contribute to the university.”

The Impact on Employers and Federal Contractors

Employers should begin to thoughtfully examine their approach to DE&I initiatives, specifically in the area of existing policies and messaging of the entity’s diversity goals. Hiring and promotion policies which consider race and ethnicity (or other diversity factors) in a manner similar to Harvard and UNC, may be rendered unlawful. Accordingly, it is important for employers to remember to:

  1. be inclusive by creating space for employees to participate in DEI initiatives and programs from all backgrounds;
  2. refrain from interviewing applicants or elevating employees to meet a threshold/quota/or critical mass of diversity within the organization;
  3. apply race-neutral diversity factors for hiring and promotion,
  4. establish recruiting partnerships with diverse organizations; and
  5. consider training recruiters, managers and supervisors on current employment and anti-discrimination laws at the state and federal levels.

OFCCP affirmative action obligations are not impacted by the Supreme Court’s decisions in Harvard and UNC. Federal contractors are required to cast a wide net when recruiting applicants for hire or promotion by targeting diverse recruiting sources. However, contractors are prohibited from making race-, ethnicity-, or gender-based hiring and promotion decisions.

If you have any questions regarding the issues addressed in this Alert, please contact the FordHarrison attorney with whom you usually work.

FordHarrison will host a complimentary webinar on July 12, 2023 at 1:00 (EST) providing an in-depth discussion on what the decision means and how this could affect employers and their future DEI initiatives. To register, click here.