• Show Notes

Dear Reader, 

We had quite the final week of this year’s Supreme Court term, with many long-awaited cases handed down. For those who were praying for “no whammies, no whammies”...there were a lot of whammies. One of them was the Court’s decision in Students for Fair Admissions (SFFA) v. Harvard/UNC, which challenged affirmative action in public and private college admissions. Although many have characterized the final decision as “barring race-conscious admissions practices,” my read of the opinion from an admissions perspective suggests that it leaves more daylight for considering how an applicant’s race adds to the diversity of the incoming class than the initial takes might suggest. The real question is how colleges and universities will implement the Court’s confusing new legal parameters.

Let’s start with the specific admissions processes that were being challenged. Both Harvard and UNC (which were chosen as defendants because one is a private university that receives federal funds and is governed by Title VI of the Civil Rights Act of 1964, and the other a public university subject to the Equal Protection Clause) had admissions practices that explicitly considered race as a factor in the admissions process. For Harvard, race came into play at various stages of the process. The first was in monitoring the overall racial composition of the class following the initial review process (which did not explicitly include race as a criteria) and before applications were reviewed by the “full” committee, and then again after the committee had voted and had a list of students who presumptively qualified for admission. The university then created a “lop list,” which considered an applicant’s legacy status, athletic ability, race, and eligibility for financial aid in determining whom to keep or reject at this stage in making final admissions decisions. Harvard admitted that being an underrepresented minority could tip in an applicants favor at this stage. At UNC, admissions officers considered 40 factors holistically, of which race was one – applicants could be given a “plus” if they were an underrepresented minority. 

Under the Court’s precedents, both of these processes would likely be legal. In a 1978 case called Regents of the University of California v. Bakke, the Court barred racial quotas in admissions but allowed race to be considered as one of many factors in achieving a diverse student body – a goal the Court considered a compelling state interest. The Bakke decision was affirmed in a 2003 case, Grutter v. Bollinger, in an opinion authored by Justice Sandra Day O’Connor.