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GrayRobinson Higher Education Team: Affirmative Action in Admissions: Is a New Day Coming?

Submitted by Firm:
GrayRobinson, P.A.
Firm Contacts:
Nicolas J. Watkins, Susan T. Spradley
Article Type:
Legal Update

Scott Cole | December 9, 2022

On Monday, October 31, 2022, The Supreme Court heard oral arguments in two cases involving college admissions: Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina.

Supreme Court Admission Cases


Current race-conscious admissions practices are built on a legal framework from Regents of the University of California v. Bakke, a 1978 Supreme Court decision that struck down racial quota systems, but found diversity to be a compelling state interest. Because achieving diversity is a compelling state interest, the Court held that universities could consider race  one of many factors in making admission decisions, so long as their admissions process is “narrowly tailored.” Narrow tailoring requires a college to show it does not have workable race-neutral alternatives to achieving diversity in admissions.


The Court again considered Race-Conscious Admissions in its 2003 decisions in Grutter v. Bollinger and Gratz v. Bollinger..

In Gratz, the plaintiffs sued to prohibit using a points-based admissions system at the University of Michigan. Michigan granted admission to any applicant who scored more than 100 points on a 150-point scale. Members of underrepresented minorities were automatically awarded 20 points. The Court found the points system violated the equal protection clause because the university’s use of the point system was not narrowly tailored to achieve the respondents’ asserted interest in diversity.


In  Grutter the plaintiff sued the university after she was denied admission to the Michigan Law School, alleging the school had discriminated against her on the basis of race in violation of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964, and 42 U.S.C. § 1981. Unlike the case in Gratz,  the law school did not use a point system but did allow the consideration of race as a factor in admission decisions. Justice O’Conner wrote the Constitution “does not prohibit the law school’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.” The Court further held law school admissions officers could consider applicants’ race so long as they did so in a “narrowly tailored” and individualized way.

Justice O’Connor also expressed the expectation “that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”


The last time the Supreme Court weighed in on affirmative action was in 2016 in Fisher v. University of Texas at Austin (there were  two cases, Fisher I and Fisher II) when the justices, after initially sending the case back to the trial Court for more details on the admission process, ruled 4 to 3 to uphold the University of Texas at Austin’s race-conscious admissions policy. The University of Texas automatically admitted Texas applicants who had completed high school in the top 10% of their graduating class, regardless of their race. For the remaining spots in each incoming class — about a quarter of admissions — the university considered various factors, including race. Fisher challenged only this discretionary part of Texas’ admission policy.

In Fisher II, the Court decided that the university could not achieve sufficient diversity in its admitted class without considering race as one factor in admissions decisions and upheld its process. Justice Kennedy wrote that before considering race in admission, the university had the burden to show there were no workable race-neutral alternatives.

State Laws

In addition, nine states in the United States have banned race-based affirmative action: California (1996), Washington (1998), Florida (1999), Michigan (2006), Nebraska (2008), Arizona (2010), New Hampshire (2012), Oklahoma (2012), and Idaho (2020). Presumably, these states will not be substantially impacted by any ruling in the current cases

Current Supreme Court Cases


In the Harvard case, the plaintiff alleges Harvard’s undergraduate admissions process violates Title VI of the Civil Rights Act of 1964 by discriminating against Asian American applicants in favor of white applicants. The plaintiff charges Harvard engages in the racial balancing of its undergraduate class; impermissibly uses race as more than a plus factor in admissions decisions; considers race in its admission process despite workable race-neutral alternatives; and intentionally discriminates against Asian American applicants.

The trial Court, in a 133-page decision, upheld Harvard’s admissions process, finding that though it might be imperfect, it passes constitutional muster. The Court also found no evidence of prejudice against Asian Americans. The Court held that Harvard did not engage in racial balancing and treated applicants as individuals with “every applicant competing for every seat” through a process of individualized, holistic review. In other words, race was “never… the ‘defining feature’ of applications.

The Court also rejected the plaintiff’s arguments that there were numerous race-neutral alternatives that could have been used to achieve diversity without consideration of applicants’ race. After a thorough assessment of Harvard’s admission practices, the Court determined these alternative processes would have no meaningful impact on diversity except to result in a significant decline in the admission of black and Hispanic students. The Court held that if consideration of race in admissions were to cease, it would diminish Harvard’s overall excellence and student experience.

The plaintiffs appealed the lower court decision to the First Circuit Court of Appeal, which affirmed.

University of North Carolina

In the North Carolina case, the plaintiff alleged the University of North Carolina’s (UNC) admissions policy violates the Equal Protection clause of the Fourteenth Amendment. The district court found UNC “produced substantial, credible, and largely uncontested evidence that it has made the deliberate decision to pursue the educational benefits that flow from student body diversity; it offered a principled, reasoned explanation for this decision; and that the benefits the university seeks to achieve are sufficiently measurable to permit judicial scrutiny.”

The district court denied each party’s motion for summary judgment, and the parties appealed to the Circuit Court of Appeal. However, before the Circuit Court could hear the case, the Supreme Court accepted jurisdiction.

Oral Argument Impressions

The Court allowed almost five hours of oral arguments and decided to accept the jurisdiction of cases involving private and public universities, indicating it intends to issue a significant ruling.. The Justices’ questions also indicate the majority are skeptical of considering race in admissions. For example, Justice Thomas expressed skepticism about the educational benefits of diversity, stating, “I’ve heard the word diversity quite a few times, and I don’t have a clue what it means.”

Justice Alito maintained admissions were a zero-sum game. If you gave one applicant an advantage because of race, another qualified applicant was equally disadvantaged. When a lawyer for Harvard said race was rarely the deciding factor in its admissions decisions, Justice Roberts replied: “So there’s only a little racial discrimination in the case?”

Justices Coney Barrett and Alito, citing Justice O’Connor’s comment in Grutter that it should not be necessary to consider race in admissions in 25 years, seem to believe that enough time has passed (20 years) for universities to have achieved diversity and further efforts would not be fruitful.

Possible Outcomes

1.     The Court could affirm the lower Court decisions based on current Supreme Court precedent. However, it is unlikely the Court would hear five hours of argument  to verify the lower Court decisions.

2.     The Court could limit its ruling to the particular facts of each case and determine that Harvard or UNC did not sufficiently consider race neutral alternatives or treated race as a determinative rather than a “plus” factor, and, therefore find their particular admission practices were not narrowly tailored. This would avoid addressing the constitutional issues and leave room for colleges to fine-tune their admission processes to distinguish them from those of Harvard and UNC. However, from its questioning, the Court did not seem very interested in the actual admission process used by the universities.

3.     Finally, they could go all in and hold that diversity is no longer a compelling state interest, and any admissions process that considers race in any way violates Title VI or the Equal Protection Clause of the Constitution. This is the most likely outcome.

Future Strategies

Some will argue a ruling eliminating diversity as a compelling state interest will not have a significant impact on the diversity of entering classes because many of the nine states who have already outlawed consideration of race in admissions have already been able to achieve diversity.  However, Harvard estimated that a race blind admissions policy would reduce its percentage of black students from 14% to 10%. For most schools, it will likely make it more difficult to assemble a diverse student body, and the more selective the university, the greater the impact.

Universities may begin considering using race-neutral means to increase diversity, such as eliminating standardized tests and focusing more on the personal attributes of applicants, such as a history of overcoming challenges and showing perseverance despite difficult life circumstances. Also, giving preference to characteristics that often align closely with race, such as socio-economic status and first time in college, can be helpful, but care must be exercised not to use them as simply a proxy for race. And continuing strategies such as automatic admission for the top ten percent of each high school graduating class can still be effective.

Whatever the means chosen, colleges will likely focus on finding legal ways to maintain a diverse community within their institution universities, as many believe that doing so is critical to preparing graduates for the society in which they will be working. It would be wise to begin now having discussions with admission professionals and legal counsel to strategize on ways to legally respond to what is likely to be a major decision by the Supreme Court. 


Contact GrayRobinson Shareholder Scott Cole or a member of the Higher Education Team.

GrayRobinson Insights are intended to provide information of general interest to the public and are not intended to offer legal advice about specific situations or problems. GrayRobinson does not intend to create an attorney-client relationship by offering this information, and anyone’s review of the information shall not be deemed to create such a relationship. You should consult a lawyer if you have a legal matter requiring attention.