Can institutions of higher education use race as a factor in admissions?
The University of North Carolina considers an applicant’s race in its undergraduate admissions decisions. The Supreme Court previously held in Grutter v. Bollinger that such consideration is constitutional so long as race is one of many factors in a holistic review process and is used to enhance racial diversity at the institution. Students for Fair Admissions, Inc. argues that the Supreme Court should overrule Grutter and hold that the Constitution does not permit racial discrimination of any kind. The University of North Carolina contends that the Supreme Court correctly decided Grutter and that the Constitution permits universities to consider race when doing so provides increased racial diversity and therefore a better academic experience. The Court’s decision in this case has heavy implications for racial diversity in universities, race discrimination, university policies, and the academic experience.
Questions as Framed for the Court by the Parties
(1) Whether the Supreme Court should overrule Grutter v. Bollinger and hold that institutions of higher learning cannot use race as a factor in admissions; and (2) whether a university can reject a race-neutral alternative because it would change the composition of the student body, without proving that the alternative would cause a dramatic sacrifice in academic quality or the educational benefits of overall student-body diversity.
The University of North Carolina (“UNC”) believes that a diverse student body results in educational benefits. Students for Fair Admissions, Inc. v. University of North Carolina (“SFFA”) at 590–91. In order to achieve its commitment to diversity, the university considers race as a factor in its admissions decisions. Id. at 595.
When a student applies to UNC, that student can optionally list their ethnicity on the application form. Id. at 596. The remainder of the application consists of the student’s high school transcript, standardized test scores, one or more letters of recommendation, and other academic, demographic, and extracurricular information about the student. Id. at 595–96.
For undergraduate applicants, one of around forty readers from the Office of Undergraduate Admissions (“Office”) reviews the application. Id. at 596–97. As part of the Office’s training of each reader, it instructs them to consider race and ethnicity as one factor in a holistic review of the individual student. Id. at 597. It also reminds them that there are no quotas for specific races. Id.
UNC generates a Reading Document which lists its admissions policies. Id. One of the policies in the Reading Document is that a student may receive a “plus” in the application process based on his or her race or ethnicity. Id. at 601. Only an underrepresented minority can receive a “plus” for the student’s race or ethnicity. Id. An underrepresented minority is an African American, Native American, or Hispanic student. Id. at 591–92.
After the reader looks at a student’s application, they make a recommendation about whether to admit the student. Id. at 598. While a second reader sometimes looks at the student’s application, all applications eventually end up before a committee of Office staff. Id. at 599. The committee has the final say on each admission decision. Id.
Students for Fair Admissions, Inc. (“SFFA”) is a non-profit organization of 20,000 members who have applied to or who plan to apply to institutions of higher education. Id. at 586. On November 7, 2014, SFFA sued UNC in federal district court. Id. at 585. SFFA claimed that the university’s use of race in undergraduate admissions violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Id.
On November 4, 2021, the district court held that UNC’s admissions policies are constitutional because it has a compelling interest in enrolling a racially diverse student body and its use of race in admissions is narrowly tailored to accomplish that interest. Id. at 666. The district court relied upon the Supreme Court’s decision in Grutter v. Bollinger, which held that universities can use race as a “plus” factor in admissions decision. Id. at 651.
SFFA appealed the decision to the United States Court of Appeals for the Fourth Circuit. Students for Fair Admissions, Inc. v. University of North Carolina (“SFFA II”) at 1. While the case was pending before the court, SFFA petitioned the United States Supreme Court for a writ of certiorari before judgment. In other words, SFFA sought to seek review of the case from the Supreme Court without waiting for a judgment from the Fourth Circuit. Petition for a Writ of Certiorari before Judgment at 10–11.
The United States Supreme Court granted SFFA certiorari on January 24, 2022. Students for Fair Admissions, Inc. v. University of North Carolina (“SFFA III”) at 1.
GRUTTER’S CONSISTENCY WITH THE CONSTITUTION
SFFA argues that the Supreme Court’s controlling precedent on race-based admissions, Grutter v. Bollinger, should be overruled because it is “grievously wrong.” Brief for Petitioner, Students for Fair Admission, Inc. at 50. SFFA asserts that Grutter is inconsistent with the fundamental principle of color-blindness originally intended in the Constitution and Fourteenth Amendment. Id. at 50–51. SFFA further contends that Grutter fails to satisfy strict scrutiny, the standard which courts use to review racial classifications under the Fourteenth Amendment, because no “compelling interest” justifies their use in school admissions. Id. at 51. SFFA argues that, because race is a poor proxy for applicants’ varying life experiences, the educational benefits derived from racial diversity alone are dubious and thus not a compelling interest. Id. at 53. SFFA likewise notes that, rather than dismantle racial stereotypes, racial classifications inherently exacerbate them and therefore cannot serve a compelling interest by providing any educational benefits. Id. at 54. SFFA also argues that Grutter does not withstand strict scrutiny because it does not require that universities pursue alternative strategies to achieve the same “compelling interests” that avoid racial classifications. Id. at 56. Finally, SFFA contends that Grutter is wrong because courts have consistently undermined the decision by limiting when and where it can be applied, because universities generally do not believe in its reasoning, and because the Supreme Court in Grutter factually misunderstood Harvard University’s admissions policy, which the decision relied on as a model for other schools. Id. at 57–60.
UNC counters that Grutter should not be overruled because it was correctly decided. Brief for Respondent, UNC at 28. UNC contends that the Fourteenth Amendment was not intended to be color-blind, pointing to the evolution of its draft language from demanding race neutrality to requiring “equal protection of the laws” to suggest that the Amendment permits racial classifications. Id. at 29–30; Brief for Respondent, UNC Students Cecilia Polanco, et al. at 20, 33. UNC also notes that laws passed and programs enacted at the same time as the Fourteenth Amendment categorized based on race, such as the Freedmen’s Bureau, suggesting that Congress intended for the Fourteenth Amendment to do so as well. Brief for Respondent-University at 30, 32–33; Brief for Respondent-Students at 20. UNC additionally maintains that racial classifications used to create a diverse learning environment are consistent with the Fourteenth Amendment because they promote integration of racially diverse students. Brief for Respondent-University at 35. UNC further asserts that Grutter is consistent with the First Amendment, which protects freedom of academic expression, by allowing universities to select a student body consistent with their academic objectives. Brief for Respondent-Students at 35. Lastly, UNC argues that diversity in educational settings is a “compelling interest” because it encourages commingling of students with different experiences who go on to become better citizens as a result. Id. at 40; Brief for Respondent-University at 38.
WORKABILITY OF GRUTTER
SFFA argues that the Court should overrule Grutter because the decision has caused “significant negative consequences.” Brief for Petitioner at 60. SFFA argues that, because the language of Grutter is too confusing and vague for universities to implement, the decision can only be enforced through litigation against individual universities on an ad hoc basis. Id. at 62. Moreover, SFFA asserts that Grutter allows universities to intentionally discriminate against oppressed groups and perpetuate racial stereotypes using their admissions programs by incorporating racially coded criteria into their application evaluation processes. Id. at 62–63. SFFA also maintains that Grutter encourages universities to set discriminatory examples for students through segregated academic and residential programming and discard intellectual diversity on campus altogether. Id. at 64–65.
SFFA also argues that the Court should overrule Grutter because the decision has generated “no legitimate reliance interests,” which reflect the potential harm to individuals or groups that have acted in dependence on the law. Brief for Petitioner at 65. Principally, SFFA asserts that nobody has a justifiable reliance interest in discrimination. Id. at 66; Reply Brief for Petitioner at 18. SFFA notes that racial classifications in university admissions are widely unpopular nationwide and that many states ban them. Brief for Petitioner at 66. SFFA also points to a statement in Grutter itself that racial classifications would be unnecessary in school admissions twenty-five years from the opinion’s announcement in 2003, suggesting that the Supreme Court in Grutter warned universities not to rely on it for perpetual protection of race-based admissions policies. Id. at 68. Finally, SFFA contends that the burden on universities in updating discriminatory admissions policies is minimal and that students cannot rely on the continuity of these policies because race is not affirmatively selected but is an immutable characteristic. Id. at 69–70.
To the contrary, UNC maintains that Grutter provides a workable standard for universities because it prescribes precise guidelines that universities have easily met. Brief for Respondent-University at 41–42; Brief for Respondent-Students at 36–37. UNC also asserts that the ad hoc nature of factual analysis that Grutter requires is typical in constitutional law and does not undermine the standard’s workability. Id. UNC further argues that, rather than have negative consequences, Grutter has positively affected society and universities through reduced prejudice and enhanced student performance and wellbeing, respectively. Brief for Respondent-Students at 39. UNC counters that Grutter cannot be causally linked to racially segregated activities at universities and that, even if it could, racial affinity groups do not promote racial segregation. Id. at 42.
UNC counters that Grutter has generated “extensive reliance interests.” Brief for Respondent-University at 43. UNC states that universities across the country have expended considerable resources ensuring that their admissions policies are consistent with Grutter and designing academic programming based on their ability to procure racially diverse classes of students. Id. at 44–45. UNC also points to the nation’s abundant cultural acceptance of diversity to suggest that the Court would disrupt this social value by overturning Grutter and notes that many universities and legislatures have opted not to enact policies contrary to Grutter. Id. at 44, 46. UNC also argues that Grutter’s 25-year timeline was only an expectation, not a deadline, and that Grutter permitted universities to continue using racial classifications in perpetuity if necessary. Id. at 46–47. UNC finally argues that employers have relied on Grutter for a racially diverse supply of new employees and that students and applicants have relied on UNC preparing them to work in a diverse environment. Brief for Respondent-Students at 43–45.
UNC’S ADMISSIONS PROGRAM UNDER STRICT SCRUTINY
SFFA argues that UNC’s race-based admissions program does not meet the strict scrutiny standard because UNC could pursue alternative strategies that would accomplish the same educational benefits as racial classifications. Brief for Petitioner at 83. For instance, SFFA points to several changes in admissions models that would produce a racially diverse student body without using racial classifications, such as privileging socioeconomically disadvantaged students instead of racial minorities, eliminating admissions preferences that disproportionately benefit white applicants, and “percentage plans” that would accept a certain percentage of top students at all North Carolina high schools. Id. at 83-85. SFFA maintains that the adverse impacts of these options on UNC, such as minor administrative burdens or slight declines in minority representation, are insufficient to overcome strict scrutiny, especially when other prominent universities have successfully enacted them while simultaneously enhancing their racial diversity. Id. at 85.
UNC counters that its racial classifications meet the strict scrutiny standard because the alternative approaches SFFA proposes are unworkable. Brief for Respondent-University at 50. UNC contends that the approaches SFFA advances rely on unrealistic assumptions regarding applicant behavior, such as the assumptions that every eligible applicant in North Carolina would apply to the University or that applicants would not change their behavior in response to modifications to the admissions process. Id. at 50–51. UNC also notes that the SFFA’s proposals would dramatically depart from its presently holistic application review process and require the University to narrowly focus on test scores and grades. Brief for Respondent-Students at 49. UNC asserts that, while it is not required to try every possible alternative, it continually assesses race-neutral alternatives to its current practices but has yet to identify a workable one. Id. at 55; Brief for Respondent-Students at 46.
RACIAL DISCRIMINATION AND INTERESTS IN DIVERSITY
Liberty Justice Center (“LJC”), in support of SFFA, contends that using race in admissions is inherently discriminatory and that universities should not be excepted from bans against racial classifications that apply to other institutions. Brief of Amicus Curiae Liberty Justice Center, in Support of Petitioner at 3–4. LJC argues that even if diverse viewpoints are important in universities, using racially discriminatory methods to achieve that goal is in and of itself racist. Id. at 6. Similarly, the Cato Institute, in support of SFFA, adds that racial discrimination by the government is particularly harmful toward individuals. Brief of Amicus Curiae Cato Institute, in Support of Petitioner at 2. The Cato Institute emphasizes that as public universities, UNC and similar universities demean citizens through government-authorized racial classifications. Id. at 2–3.
Oklahoma and fourteen other states (“States”), in support of SFFA, provide evidence that racial diversity can be achieved in universities without considering race in admissions. Brief of Amici Curiae Oklahoma et al., in Support of Petitioner at 11–13. The States posit that public universities which do not consider race in admissions are able to maintain high levels of diversity without sacrificing academic prestige. Id. at 13–14.
American G.I. Forum (“Forum”), in support of UNC, responds that racial discrimination cannot be solved without considering race. Brief of Amici Curiae American G.I. Forum et al., in Support of Respondents at 30–31. The Forum asserts that racial disparities will exist whether or not society acknowledges the idea of race and recognizing race best addresses those race-related disparities. Id. Likewise, the National Black Law Students Association (“NBLSA”), in support of UNC, emphasizes that race-based admissions policies are necessary to counteract racial segregation in primary and secondary schools. Brief of Amici Curiae National Black Law Students Association, in Support of Respondents at 12–13. The NBLSA claims that, in addition to de facto housing segregation, income disparities necessitate considering race as a factor in admissions decisions. Id. at 17–18.
Deborah Cohen and sixty-seven other professors (“Professors”), in support of UNC, contend that racial diversity cannot truly be achieved in universities without considering race in admissions. Brief of Amici Curiae Deborah Cohen et al., in Support of Respondents at 26–27. The Professors cite statistics demonstrating a decrease in the percentage of minority students in public schools for states that banned race-based admissions policies. Id.
RACIAL DIVERSITY AND THE ACADEMIC EXPERIENCE
The National Association of Scholars (“NAS”), in support of SFFA, asserts that students in racially diverse universities are not actually so different from each other in ways other than race. Brief of Amicus Curiae National Association of Scholars, in Support of Petitioner at 9–10. NAS cites the University of Texas as an example of a university that prefers more affluent minority students, tightening the division between any actual diversity other than race. Id.
The Pacific Legal Foundation and six other non-profits and education-related groups (“PLF”), in support of SFFA, similarly argue that racial classifications used to measure racial diversity do not reflect actual cultural diversity. Brief of Amici Curiae Pacific Legal Foundation et al., in Support of Petitioner at 12–13. PLF highlights how the single racial or ethnic group “Asian” or “Hispanic” actually encompasses numerous different cultures and students whose families come from a wide variety of countries. Id.
The National Academy of Education (“NAE”), in support of UNC, counters that racial diversity in universities leads to a higher quality academic experience as well as benefits to society. Brief of Amicus Curiae National Academy of Education, in Support of Respondents at 6. Specifically, NAE adds that racial diversity provides students with the opportunity to understand different races, an important skill for learning and working in an increasingly diverse society. Id.
The American Civil Liberties Union (“ACLU”), in support of UNC, posits that empirical studies have provided evidence of various educational benefits to racial diversity, including increased collaboration among students. Brief of Amicus Curiae American Civil Liberties Union et al., in Support of Respondent at 9–10. Furthermore, the ACLU asserts that students who are racial minorities have a unique viewpoint and that adding those viewpoints to universities will promote beneficial diversity of perspectives. Id. at 10.
- Dan Schweitzer, Supreme Court Report, NAAG (Feb. 14, 2022).
- Alex Swoyer, Supreme Court Schedules Affirmative Action Cases for Oct. 31, Washington Times (Aug. 3, 2022).
- Students for Fair Admissions, Inc. v. UNC, Ballotpedia.