On June 29, 2023, the U.S. Supreme Court issued its ruling in SFFA v. Harvard and SFFA v. UNC and found that Harvard and the University of North Carolina’s affirmative action programs violate the Equal Protection Clause of the Fourteenth Amendment. This devastating decision overrules 45 years of precedent established in prior Supreme Court decisions, including Regents of the University of California v. Bakke, Grutter v. Bollinger, and Fisher v. University of Texas.
On October 31, 2022, the U.S. Supreme Court heard oral arguments in the cases Students for Fair Admissions (SFFA) v. Harvard and Students for Fair Admissions (SFFA) v. University of North Carolina (UNC), two landmark cases involving affirmative action. SFFA, an organization created by Edward Blum, filed the lawsuits in 2014 as part of a relentless crusade to overturn 40+ years of precedent and eliminate the consideration of race in college admissions. Blum is also responsible for the litigation in Shelby County v. Holder.
LDF has long represented twenty-five Harvard student and alumni organizations of thousands of Black, Latinx, Asian American, Native American, and white students and alumni as amici curiae, or “friends of the court,” in the Harvard lawsuit. You can find SFFA v. Harvard briefs and case documents here. LDF presented members of its client organizations as witnesses at the 2018 trial and submitted declarations, other evidence, briefs and oral argument on their behalf. LDF filed an amicus brief in the Supreme Court of the United States in SFFA v. UNC on behalf of LDF and the NAACP in support of UNC’s race-conscious admissions process.
The Supreme Court ruled that Harvard and the University of North Carolina’s affirmative action programs violate the Equal Protection Clause of the Fourteenth Amendment. However, the Court’s ruling still allows colleges to consider how race has affected a student’s life and their ability to contribute to the educational institution. This radical decision comes at a time when efforts to advance opportunity in education have been under attack across the country, and the need for such programs remains acute. The Court’s decision is contrary to 45 years of precedent established in prior Supreme Court decisions, including Regents of the University of California v. Bakke, Grutter v. Bollinger, and Fisher v. University of Texas.
The Court’s decisions flout the principle of stare decisis and also reverse detailed and thoroughly reasoned opinions from lower courts that held Harvard and UNC’s holistic, race-conscious admissions programs were legally permissible.
In rejecting Harvard and UNC’s race-conscious admissions programs, the Supreme Court chose to ignore well-established social science, pedagogy, and the lived experience of many Americans who know that bringing together people of different backgrounds makes our classrooms better and our nation stronger.
Yes. The Court’s decision to strike down UNC and Harvard’s affirmative action policies ignores longstanding precedent and will have a devastating impact on diversity in higher education and rolls back decades of progress toward educational equity. It is a disastrous blow to fairness in education and to opportunity for students of color. The decision is a rejection of the spirit and intent of Brown v. Board of Education – the case that ruled that racial segregation in public schools was unconstitutional and recognized that fair access to education is vital to our entire society.
Despite how alarming this decision is, it is important to know exactly what the Supreme Court did and did not decide in these cases. The court’s decision is limited to the consideration of race, as a tip, in college admissions as conducted by Harvard and UNC. It is not about outreach, recruitment, affinity groups, employment, contracting, race-neutral policies governing K-12 selective admissions, diversity, equity, and inclusion (DEI) programs, or Critical Race Theory. In fact, these efforts are even more important after the Court’s ruling.
This decision will undoubtedly impact students of color, but all students will be impacted. The decision will restrict educational opportunities for students of color and roll back decades of progress. Race-conscious admissions policies are crucial to mitigating the structural inequalities that have historically limited the potential and educational opportunities for students of color.
All students deserve the freedom and opportunity to have their full identities and lived experiences considered when seeking admissions to institutions of higher education. Abandoning race-conscious admissions policies will unfairly disadvantage applicants of color since universities would no longer be able to fully consider their personal statements, leadership experiences, recommendation letters, and activities to the extent these aspects of their application revealed their race.
Striking down race-conscious admissions will further cement racial inequalities in our education system, and severely decrease diversity on college campuses. Based on modeling from the Class of 2019, if Harvard stops considering race, the number of Black, Latino, Native, Hawaiian, and Pacific Islander students would drop by nearly 50%. Most of these students would be replaced by white students. Without the fair shot that holistic admissions enables, an entire generation (or more) of promising, hard-working Black, Latino, Native American, and Asian American and Pacific Islander (AAPI) students will be shut out of selective colleges and universities, through no fault of their own.
It has been proven time and time again that diversity benefits all students. Research shows that diverse learning environments help all students build skills associated with academic success, including critical thinking, problem solving ability, student satisfaction and motivation, general knowledge, and intellectual self-confidence. In addition, cross-racial interactions can reduce prejudice and stereotypes, enhance empathy, and open minds. Students of all racial backgrounds benefit from racially diverse learning environments and are better equipped to succeed in today’s workplaces and serve today’s clientele.
Despite the Supreme Court’s opinion today, colleges, universities, and our nation still have a moral imperative and the legal ability to ensure that their doors are open equally to all students, including Black, Latinx, Native American, Hawaiian, Pacific Islander, and Asian American applicants. Even under the terms of this unfortunate decision, all students continue to have the freedom and opportunity to have their full identities, including the impact of race on their lived experiences, considered when seeking admissions to institutions of higher education.
SFFA v. Harvard and SFFA v. University of North Carolina are two consequential Supreme Court cases focused on race-conscious admissions and diversity in higher education. In both cases, the petitioner, SFFA, asks the Court to change the law to prohibit the consideration of race in admissions. SFFA also alleges that both Harvard and UNC fail to comply with existing laws.
The Harvard case is the first challenge to a race-conscious admissions policy involving a private college to reach the Supreme Court. In the lawsuit, SFFA alleges that, as a federally funded program, Harvard’s consideration of race, as one of many factors, in admissions violates Title VI of the Civil Rights Act of 1964. Policies that advance equal opportunity, like Harvard’s race-conscious admissions program, are sorely needed. For almost 85% of its nearly 400-year history, Harvard systematically excluded Black, Latinx, Native/Indigenous, Asian American, and other students of color.
SFFA v. University of North Carolina is another Supreme Court case challenging race-conscious admissions policies. UNC is considered to be the oldest public university in the country. UNC only admitted its first Black students in 1951, more than 160 years after its founding, and only did so in response to a federal court order. UNC’s race-conscious admissions policy is especially necessary because, in the state’s primary and secondary schools, talented Black students are systemically denied a fair opportunity to amass the traditional credentials that universities prioritize, such as high-grade point averages, rigorous courses, extracurricular and artistic accolades and standardized test scores, that would give them a competitive advantage in UNC’s admissions process.
The outcome of the cases could determine the future of race-conscious admissions and have a major adverse impact on all students, especially students of color. Without race-conscious admissions, all students will be deprived of the educational benefits of diversity and will be less prepared to thrive in an increasingly multiracial democracy. The removal of race from consideration would force students of color to hide a key part of their identity in their applications, as racial and cultural heritage are often inextricably intertwined with the experiences prospective students want to include.
Race-conscious admissions policies allow colleges and educational institutions to consider an applicant’s race as one of the many factors in the admissions process. Race-conscious admissions are necessary to assemble a diverse student body and achieve educational equity. Holistic admissions allow schools to consider the whole picture of who an applicant is. Holistic admissions provides greater context to the traditional admissions considerations like test scores, grades, and advanced coursework, which is important since the opportunity to excel on these measures is affected by race and privilege. Holistic admissions break down some of the barriers that prevent Black, Latino, Native American, and AAPI students from going to college. All students deserve a fair shot at going to college, regardless of their income, where they grew up, or their racial and ethnic background.
Race and ethnic identity have shaped the lives and perspectives of many students of color. Overcoming racial discrimination can be a big part of their lives, and removing the consideration of race in admissions would force students to leave out a core part of who they are. Race is among more than 100 factors in consideration during the admissions process and the reality is there are many highly talented students of all backgrounds. Colleges and universities should build a student body that is reflective of the diversity of America.
Affirmative action arose at the height of the civil rights movement when President John F. Kennedy’s 1961 Executive Order 10925 and President Lyndon B. Johnson’s 1965 Executive Order 11246 mandated that federal government contractors “take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, creed, color, or national origin.”
When affirmative action came into practice in 1965, the federal government intended for the policies to do more than simply bar racial discrimination. Rather, affirmative action was created to level the playing field by neutralizing the effect of years of systemic racial discrimination and oppression.
SFFA is an organization led by anti-civil rights activist Edward Blum that filed the lawsuits against Harvard and UNC in 2014. It is part of a relentless crusade to ban the consideration of race in admissions. Blum’s coordinated campaign against holistic admissions includes the landmark case Fisher v. University of Texas in which the court upheld the University of Texas’s race-conscious admissions practices. Blum has orchestrated attacks on civil rights from the classroom to the ballot box. He was also the architect behind Shelby County v. Holder, in which the Supreme Court gutted the seminal Voting Rights Act.
Race–conscious admissions policies and diversity in higher education have a major impact beyond the classroom. Diverse learning environments enrich the college experience for everyone and better prepare students of all backgrounds for success in the multiracial workplace and the society we live in. There are direct economic benefits to a well-educated and diverse workforce, and race-conscious admissions programs in higher education make that possible. As noted in approximately 60 amicus briefs filed in support of race-conscious admissions, having a pipeline of diverse graduates is an economic, medical, military, and scientific imperative. Diversity in higher education is vital to assembling a diverse workforce to serve our communities.
Yes. Since affirmative action policies were established in 1965, opponents of diversity and race-conscious admissions have repeatedly mounted legal challenges to dismantle and eliminate the consideration of race in admissions. For the past 40 years, the Supreme Court has upheld race-conscious admissions policies and ruled that it is legally permissible for colleges and universities to consider race, as one of many factors, in admissions in order to assemble a diverse student body, so students can reap the benefits of learning in a diverse environment.
LDF has been deeply involved with all five Supreme Court cases related to race-conscious admissions. The Supreme Court first upheld race-conscious admissions in Regents of the University of California v. Bakke in 1978. LDF submitted an amicus brief in Bakke that emphasized that the Supreme Court should uphold the respondent’s medical school affirmative action program because it remedied two conditions: a lack of doctors of color caused by de jure segregation, and the lack of health care professionals serving communities of color.
In the Bakke decision, Justice Lewis F. Powell, Jr. held that remedying societal racial discrimination did not justify the consideration of race in university admissions. Justice Powell instead concluded that a compelling government interest in the pursuit of the educational benefits of a diverse student body justified the narrowly tailored use of race in university admissions. Regarding Bakke, Justice Powell also recognized that the limited consideration of race in admissions could help ensure the “fair appraisal of each individual’s academic promise in the light of some cultural bias in grading or testing procedures.”
The Supreme Court later adopted Justice Powell’s diversity rationale in Grutter v. Bollinger, then reaffirmed the legal permissibility of the consideration of race in admissions multiple times in Gratz v. Bollinger in 2003 and in Fisher v. University of Texas in both 2013 and 2016. Former LDF Director-Counsel John Payton also defended the University of Michigan’s race-conscious admissions policy before the U.S. Supreme Court in Gratz. In the first Fisher case, LDF filed an amicus brief in 2013 in support of the University of Texas, and presented oral arguments before the U.S. Court of Appeals for the Fifth Circuit.
No. Holistic, race-conscious admissions processes and diverse educational experiences benefit all students. The attacks on affirmative action are attempts to strip away the progress that communities of color have made and make educational opportunities the exclusive domain of the white and privileged. After losing multiple cases challenging affirmative action using white plaintiffs, SFFA and similar groups sought out Asian Americans to draw a racial wedge between communities of color and dismantle more than 40 years of legal precedent.
With affirmative action, Asian Americans rose from 3% of the class of 1980 to 27.6% of the class of 2026. Asian Americans are an extremely economically diverse group. Many Asian Americans face great adversity and have fewer educational opportunities before applying to college. If admissions were based strictly on test scores, about 20% of Asian Americans attending elite colleges wouldn’t be admitted.
The trial court found no evidence of racial discrimination toward Asian American applicants. After analyzing 480 admissions files and data from over 150,000 applicants, SFFA did not present a single application showing Asian American ethnicity was viewed negatively. SFFA did not present even a single admissions file or application that it contended reflected an applicant who would have been admitted absent discrimination.
Due to persistent racial inequalities in PK-12 educational systems, most students of color — and Black students in particular — do not have an equal opportunity to earn the credentials that would give them a competitive edge in college admissions, regardless of their talent and hard work. Affirmative action and holistic, race-conscious admissions policies help break down the barriers that prevent many students of color from gaining admission to the most selective schools.
Race is among more than 100 factors in consideration during the admissions process and the reality is there are a lot of highly qualified students of all backgrounds. Inclusive admissions practices expand educational opportunities and take into account the lived experiences of students of color. It is impossible for colleges and universities to have a fair admissions process that completely ignores race and its real-life impact on students’ lives. Regardless of their income, where they grew up, or their racial and ethnic background, students deserve a fair shot at going to college.
An “Amicus curiae” is a “friend of the court”; it is what we call individuals and/or organizations who are not the plaintiffs or defendants in a case, but nevertheless have information that would be helpful to the court in making its decisions.
Visit Defenddiversity.com for a case timeline, case documents, and historical background on SFFA v. Harvard, and follow the conversation on social media with hashtags #DefendDiversity, #AffirmOpportunity, and #AffirmDiversity.
