The U.S. Supreme Court ruled Thursday that race-conscious admissions practices at Harvard University and the University of North Carolina at Chapel Hill are unconstitutional, shattering decades of legal precedent and upending the recruitment and enrollment landscape for years to come.
Higher education pundits widely anticipated the high court’s conservative bloc would curtail race as an admissions consideration, which the Supreme Court first deemed permissible in the 1978 decision in Regents of the University of California v. Bakke.
Nevertheless, Thursday’s majority opinion, written by Chief Justice John Roberts, was a gut punch for enrollment managers, college administrators, high school counselors and racial advocacy groups who feared it would send a dissuasive message to marginalized applicants — that they are not welcome in the postsecondary education world.
Legal scholars and higher ed leaders emphasized Thursday they were still wading through the 237-page court ruling and figuring out how they could apply it on campuses.
The opinion seemingly leaves wiggle room for college admissions offices to acknowledge how students’ race contributed to hardships or affected their character, “universities may not simply establish through application essays or other means the regime we hold unlawful today,” Roberts wrote.
In fact, most colleges don’t rely on race as an admissions factor, as they accept a majority or all of their applicants. Thus, only a small swath of selective higher ed institutions will likely need to remold their admissions policies. But no matter what, when enrollment offices have accounted for race, it was not supposed to be the sole admissions criterion, which court precedent already established as illegal.
With the precise legal intricacies yet to be worked out, the higher ed sphere’s immediate response was resounding: It would continue its work to cultivate campus diversity despite the ruling against an admissions cornerstone. And though the high court yanked away one tool used to bolster diversity, there are many others, advocates said.
A similar sentiment came from the highest reaches of the federal government. Hours after the ruling came down, President Joe Biden called on colleges to consider in admissions the “adversities” that applicants have overcome, like socioeconomic hardship or episodes of prejudice.
“Discrimination still exists in America," Biden said in televised remarks. "Today's decision doesn't change that. We cannot let the decision be a permanent setback for the country."
Whether the opinion will actually galvanize the risk-averse higher education sector remains to be seen, though. As Dominique Baker, an education policy professor at Southern Methodist University said Thursday: “No college wants to have their name on the next Supreme Court case.”
What did the opinion say?
Conservatives who dominate the high court were enticed by arguments from legal group Students for Fair Admissions, or SFFA, which in two lawsuits alleged UNC-Chapel Hill favored Black and Hispanic applicants and accused Harvard of discriminating against Asian American students.
“The opinion issued today by the United States Supreme Court marks the beginning of the restoration of the colorblind legal covenant that binds together our multi-racial, multi-ethnic nation,” SFFA President Edward Blum said in a statement Thursday.
Lower courts had sided with the two highly selective institutions. But the Supreme Court instead held that the universities' admissions processes infringed on the 14th Amendment’s guarantee to equal protection under the law. That holding applies to most private colleges because they receive federal funding.
Roberts, in the majority opinion, held up college admissions as a zero-sum game — that when students of one race benefit, it’s at their peers’ expense.
This sort of pernicious stereotyping does not justify colleges trying to diversify their student bodies. This can have educational benefits, like preparing engaged citizens, but Roberts labeled these as ill-defined goals.
“While these are commendable goals, they are not sufficiently coherent for purposes of strict scrutiny,” Roberts wrote. “It is unclear how courts are supposed to measure any of these goals, or if they could.”
In Thursday’s opinion, the high court’s conservatives wanted to know when race-conscious policies could end — Roberts repeatedly referenced a theoretical timeline prophesied by a 2003 Supreme Court admissions case, Grutter v. Bollinger, which preserved the University of Michigan’s race-conscious admissions policies.
Former Justice Sandra Day O’Connor, writing for the court’s majority in that case, predicted race-conscious practices would be moot in 25 years, though she later voiced regret for her phrasing.
“Twenty years have passed since Grutter, with no end to race-based college admissions in sight,” Roberts wrote.
Still, colleges are not entirely precluded from considering race, the high court ruled. Roberts wrote that colleges can in fact review how race influenced an applicants’ life, “so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university.”
In the same breath, though, Roberts warned against colleges trying to circumvent the new prohibition on race-conscious admissions through means like admissions essays.
In essence, the Supreme Court’s conservative wing appeared to accept the existence of interpersonal, but not structural, racism, Baker said. Enrollment professionals will be challenged to untangle the two concepts when making admissions decisions, she said.
Ketanji Brown Jackson, the court’s newest justice, in her dissent took the conservatives to task for this line of thinking. Jackson had recused herself from the Harvard case, having previously served on one of the university's boards.
“With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat,” Jackson wrote. “But deeming race irrelevant in law does not make it so in life.”
How can colleges evaluate students’ raced-based experiences within the new ruling’s confines? That’s what higher ed will need to figure out.
Angel Pérez, chief executive of the National Association for College Admission Counseling, noted that the Common Application, an online portal for applying to more than 1,000 colleges, allows institutions to include short answer questions.
Colleges could devise a question for that section that speaks to students’ “lived experiences,” he said.
“We’re not 100% sure yet,” Pérez said.
In the interim, Pérez said it will assist its membership, composed of high school counselors and college admissions professionals, with navigating the ruling’s complexities. NACAC will host a series of events to discuss its parameters, he said. Pérez said high school counselors in particular are worried about advising students on college programs designed to benefit marginalized students, like those who are Black or Latino.
The Education Department also wants to help. It said in a statement Thursday in response to the ruling that it plans to, along with the U.S. Department of Justice, offer colleges a listing of lawful admissions practices within the next 45 days.
By September, the Education Department is to produce a report outlining strategies for boosting campus “diversity and educational opportunity,” it said in Thursday’s statement. The agency also said it will mull over whether it can gather and publish more enrollment data, such as that “disaggregated by race and ethnicity, first-generation status, legacy status.”
“I want to send a message to all aspiring students, especially Black, Latino, Asian American, Native American, Alaska Native, Native Hawaiian, Pacific Islander, and other students from underserved communities: we see you and we need you.” Education Secretary Miguel Cardona said in a statement Thursday. “Do not let this ruling deter you from pursuing your educational potential.”
The American Council on Education, higher ed’s top lobby, will also hold an event for colleges on July 6, when its legal team will discuss the ruling’s implications, said Jessie Brown, ACE senior vice president and chief of staff.
Higher ed is not a monolith, and though institutions such as open access colleges do not account for race, the decision could affect them, Brown said.
“We would never suggest that the practices at a smaller liberal arts school apply to a giant public institution,” Brown said. “There are some commonalities, but location, specific mission — all that really matters, and there’s a lot of moving pieces.”
Fear of overcorrection
Higher education as an industry is notoriously slow to react to change — but quick to overreact to potential litigation, Baker said.
Despite statements expressing dismay over Thursday’s decision, Baker said she doesn’t know whether colleges will follow through with boosting other diversity efforts.
A prevailing fear is institutions will overreact to the ruling, scaling back programs designed to support disadvantaged students, said Terri Taylor, strategy director for innovation and discovery at the Lumina Foundation, a nonprofit focused on postsecondary education access.
Though the ruling represents a setback, to Taylor it also offers opportunity for colleges to invest in other diversity programs, or revisit admissions work outside of race-conscious policies. She gave the example of staffing admissions offices with diverse workers, or prioritizing high school visits in low-income communities.
“We can’t let six people on the Supreme Court who feel this way about this one particular tool to stop us moving forward in some of the work,” Taylor said.
Higher education leaders should also keep in mind that conservative legislators are currently seeking to strike down some of higher ed’s most treasured conventions, she said.
Prime examples are in Texas and Florida, where diversity spending has been prohibited. Florida’s governor, Republican presidential contender Ron DeSantis, has waged war with higher education, including by suing the Education Department over accreditation requirements and proposing a ban on academic programs in intersectionality and gender studies in the state's public colleges.
“It’s part of upholding white supremacy,” Baker said “We cannot look at the Supreme Court case in isolation.”
The Supreme Court last ruled on race-conscious policies in 2016.
SFFA also brought that lawsuit, which was on behalf of Abigail Fisher, a White student who said the University of Texas at Austin had denied her admission because of her race. The justices narrowly upheld the university’s race-conscious admissions program in that case, Fisher v. University of Texas.
Justice Anthony Kennedy, who wrote the majority opinion in the Fisher case, backed previous rulings saying race-conscious admissions programs could be constitutional if they were narrowly tailored to account for the educational benefits of diversity. The decision shocked college access advocates at the time, given that Kennedy had dissented in the 2003 ruling in Grutter.
A history of race-conscious policy bans
While Thursday's ruling restricts colleges nationwide, some institutions have already been grappling with the fallout from race-conscious policy bans.
Julie J. Park, an education professor at the University of Maryland, College Park, suggested colleges look to the University of California System, which has made strides in increasing the share of racial minority students.
That’s despite California being the first of nine states to ban race-conscious practices in the past quarter-century.
Black and Hispanic student representation dropped immediately after California struck down race-conscious admissions in 1996. The effects of the ban are enduring, too, with one peer-reviewed study last year finding underrepresented students were instead enrolling in “lower-quality colleges.”
The UC system also spent half a billion dollars on diversity efforts and outreach, in an attempt to mitigate damage from the race-conscious policy ban, resources most colleges do not possess.
“It’s all just a sad moment in higher education,” Park said.