On June 29, 2023, the U.S. Supreme Court found Harvard University’s and the University of North Carolina’s affirmative action admission policies unconstitutional in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College. The decision reversed years of cases permitting race-based admission policies. Colleges and universities should review their admission policies in light of the decision.

What is the background of the case?

In November 2014, Students for Fair Admissions (SFFA) sued both Harvard University and the University of North Carolina (UNC), alleging the schools’ admissions processes violated both Title VI of the Civil Rights Act of 1964 and the 14th Amendment’s Equal Protection Clause because they considered race as a factor in admissions. SFFA argued that Harvard discriminated against Asian Americans in its subjective “personal rating” factor. And SFFA alleged that UNC discriminated against white and Asian-American students, violating the 14th Amendment, by giving preference to underrepresented racial minorities.

After lower courts upheld both schools’ admissions processes, the Supreme Court granted review.

What was the Supreme Court’s decision?

Chief Justice Roberts wrote for the court and struck down each school’s admissions processes, concluding they failed strict scrutiny under the Equal Protection Clause. Justice Roberts noted that Harvard and North Carolina provided no clear or measurable justifications for their policies, that their racial categories were too broad and ambiguous, and that race-based admissions policies rely on impermissible racial stereotyping. Furthermore, the court concluded that both schools’ statements that race-based admissions would end when there was “meaningful representation” did not provide a clear endpoint to the practice.

What should colleges and universities do?

SFFA v. Harvard forbids broad racial preferences and race-based admissions practices. However, higher education institutions may consider an applicant’s discussion of how race has affected the applicant’s life — provided that discussion is concretely tied to the applicant’s character or unique abilities. However, schools can no longer use race qua race as a basis for admissions. So colleges and universities should examine their admissions policies and processes to ensure that admissions decisions are based on individual applicants, rather than broad racial categories and preferences.

For additional information on how the decision affects college admission policies, please contact any member of Taft’s Employment, Appellate, and Higher Education practice groups.  

Taft summer associate Kate Hussey contributed to this article.