Students for Fair Admissions v. Harvard

Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023), is a landmark decision  of the Supreme Court of the United States in which the court held that race-based affirmative action programs in college admissions processes violate the Equal Protection Clause of the Fourteenth Amendment. With its companion case, Students for Fair Admissions v. University of North Carolina, the Supreme Court effectively overruled Grutter v. Bollinger (2003) and Regents of the University of California v. Bakke (1978), which validated some affirmative action in college admissions provided that race had a limited role in decisions.

In 2013, Students for Fair Admissions (SFFA) filed suit against Harvard University in U.S. District Court in Boston, alleging that the university's undergraduate admission practices violated Title VI of the Civil Rights Act of 1964 by discriminating against Asian Americans. In 2019 a district court judge upheld Harvard's limited use of race as a factor in admissions, stating lack of evidence for 'discriminatory animus' or 'conscious prejudice'.

In 2020, the U.S. Court of Appeals for the First Circuit affirmed the district court's ruling. In 2021, SFFA petitioned the Supreme Court, which agreed to hear the case. Following the appointment of Justice Ketanji Brown Jackson, a member of the Harvard Board of Overseers at the time, the cases were split with Jackson recusing from the Harvard case while participating in the North Carolina one.

On June 29, 2023, the Supreme Court issued a decision in Harvard that, by a vote of 6–2, reversed the lower court ruling. In writing the majority opinion, Chief Justice John Roberts held that affirmative action in college admissions is unconstitutional. Because of the absence of U.S. military academies in the cases, the lack of relevant lower court rulings, and the potentially distinct interests that the military academies may present, the Court, limited by Article III, did not decide the fate of race-based affirmative action in the military academies.

Background
The historical and legal background of the case spans several decades from the 1978 case Regents of the University of California v. Bakke over the 2003 case Grutter v. Bollinger to the 2016 case Fisher v. University of Texas (2016). The U.S. Supreme Court ruled in Bakke, a 1978 landmark decision, that affirmative action could be used as a determining factor in college admission policy but that the University of California, Davis School of Medicine's racial quota was discriminatory. The Court upheld this case in Grutter v. Bollinger, a 2003 landmark decision. Concurrently, the Court ruled that the points system used by the University of Michigan to favor underrepresented minorities was unconstitutional in Gratz v. Bollinger. The Court vacated Fisher v. University of Texas (2013) and upheld the lower court's decision to apply strict scrutiny to the University of Texas at Austin's race-conscious admissions policy in Fisher v. University of Texas (2016). In Fisher II, strict scrutiny requires that the use of race serve a "compelling governmental interest"—like the educational benefits that stem from diversity—and be "narrowly tailored" to satisfy that interest. Institutions that receive federal funding, such as Harvard University, are subject to Title VI of the Civil Rights Act of 1964, which outlaws racial discrimination.

For years prior to the decision which took place in 2023, affirmative action in the United States was considered by some to be a wedge issue among Asian Americans. It was contended in such circles that the practice drew criticism from white and Asian Americans, but support from African Americans, and mixed support among an ethnic designation, Hispanic and Latino Americans. In polling for affirmative action, answers varied depending on how the question is asked, suggesting ambivalence. Among Democrats and Republicans, there is a divide.

Opposition to affirmative action emerged in the neoconservative journal The Public Interest, particularly with editor Nathan Glazer's book Affirmative Discrimination: Ethnic Inequality and Public Policy (1975). In the Roberts Court, Chief Justice John Roberts questioned the benefits of diversity in a physics class in Fisher II. Justices Clarence Thomas and Samuel Alito have opposed affirmative action; the remaining three conservative justices had no track record of opposing affirmative action prior to the ruling, although a 1999 article Justice Brett Kavanaugh wrote in The Wall Street Journal signaled he would end it. The liberal Sotomayor has repeatedly and proudly said that she is a “product of affirmative action” and has defended affirmative action in previous cases before the Court.

Lawsuit
SFFA filed a lawsuit in federal district court against Harvard University on November 17, 2014, representing a group of anonymous Asian American plaintiffs rejected from the university. The suit made the claim Asians were being discriminated against in favor of whites. SFFA was founded by conservative legal strategist Edward Blum, who also founded the Project on Fair Representation, with a goal to end racial classifications in education, voting procedures, legislative redistricting, and employment. Blum participated in cases such as Bush v. Vera, Shelby County v. Holder, and Fisher v. University of Texas. The SFFA case was the first high-profile case on behalf of plaintiffs who were not white, and who had academic credentials that, according to Vox, were "much harder to criticize." The lawyers for SFFA stated that the initial hearing focused on the issue of discrimination against Asian American applicants, instead of trying to challenge affirmative action in general.

Certain Asian American advocacy groups filed amicus briefs in support of SFFA, believing that they or their children are discriminated against in college admission processes. Other Asian American advocacy groups filed amicus briefs in support of Harvard. On May 15, 2015, a coalition of more than 60 Asian American organizations filed federal complaints with the United States Department of Education and Department of Justice against Harvard University. The coalition asked for a civil rights investigation into what it described as Harvard's discriminatory admission practices against Asian American applicants. The complaints at the Department of Education were dismissed in July 2015 because a lawsuit making similar allegations had already been filed by Students for Fair Admissions (SFFA) in November 2014.

However, in 2017, the coalition resubmitted their complaints to the Department of Justice under the Trump administration. It opened an investigation into allegations against Harvard's policies, and that investigation was ongoing as of February 2020.

Plaintiff allegations
In the lawsuit, the plaintiffs claimed that Harvard imposes a soft quota of “racial balancing" that artificially depresses the number of Asian-American applicants admitted to Harvard. The plaintiffs maintained that the percentage of Asians admitted to Harvard was suspiciously similar year after year despite dramatic increases in the number of Asian American applicants, as well as the size of the Asian American population.

During the lawsuit, the plaintiffs gained access to Harvard's individualized admissions files from 2014 to 2019 and aggregate data from 2000 to 2019. The plaintiffs also interviewed and deposed numerous Harvard officials. From these sources, the plaintiffs alleged that Harvard admissions officers consistently rated Asian American applicants, as a group, lower than others on "positive personality traits," such as likability, courage, and kindness. The plaintiffs alleged that Asian Americans scored higher than applicants of any other racial or ethnic group on other admissions measures like test scores, grades and extracurricular activities, but the students' personal ratings significantly hampered their admissions chances. The plaintiffs also claimed that alumni interviewers (who, unlike admissions officers within Harvard, actually met individual applicants) gave Asian Americans personal ratings comparable to white applicants. Harvard's admissions staff testified that they did not believe that different racial groups have better personal qualities than others, but nevertheless, Asian applicants as a racial group received consistently weaker personal scores over the period surveyed, and Harvard's admissions office rated Asian Americans with the worst personal qualities of any racial group. African-Americans, on the other hand, consistently scored the lowest on the academic rating, but highest on the personal rating.

Peter Arcidiacono, a Duke University economist testifying on behalf of the plaintiffs, concluded that Asian American applicants as a group performed stronger on measures of academic achievement (which Arcidiacono measures using applicants' SAT and ACT scores) and extracurricular activities. Despite this, they received a statistically significant penalty relative to white applicants in the "Personal Rating" and "Overall Rating" assigned by Harvard officials. As a result, the plaintiffs allege Asian American applicants have the lowest chance of admission of all racial groups in the United States, despite scoring highest in all objective measurements. Arcidiacono testified that removing the personal score penalty of Asian applicants relative to white applicants would result in a 16% increase in the number of admitted Asian Americans.

Arcidiacono suggested that the applicant's race plays a significant role in admissions decisions. According to his testimony, if an Asian American applicant with certain characteristics (like scores, GPAs, and extracurricular activities, family background) would result in a 25% statistical likelihood of admission, the same applicant, if white, will have a 36% likelihood of admission. Hispanic and Black applicants with the same characteristics will have a 77% and 95% predicted chance of admission, respectively.

Arcidiacono's report also alleges that Harvard's preferential treatment of African-American and Hispanic applicants is not the result of the university's efforts to achieve socioeconomic diversity of its student body, as "Harvard admits more than twice as many non-disadvantaged African-American applicants than disadvantaged African-American applicants." He also stated that if Harvard were to remove all other factors for admissions preference— racial preferences for under-represented minorities, penalties against Asian Americans, and legacy and athlete preferences— the number of Asian-American admits would increase by 1,241 over six years, a 50% increase.

The plaintiffs also claim that Harvard's own Office of Institutional Research found a statistically significant penalty against Asian American applicants in an internal investigation in 2013, but had never made the findings public or acted on them. Plaintiffs and commentators have compared the current treatment of Asians with the Jewish quota in place in the early 20th century, which used the allegedly “deficient” one-dimensional personalities of immigrant Jews and their alleged lack of leadership traits as the reason for excluding non-legacy Jews in elite universities, including Harvard.

Defendant responses
Harvard denies that the discrimination it engaged in was inappropriate and said its admissions philosophy of considering race as one of many factors in its admissions policy complies with the law. The school also says that it receives more than 40,000 applications, that a large majority of applicants are academically qualified, and as a result, it must consider more than grades and test scores to determine admission for its 2,000 available slots. Harvard also stated that its personal rating "reflects a wide range of valuable information in the application, such as an applicant’s personal essays, responses to short answer questions, recommendations from teachers and guidance counselors, alumni interview reports, staff interviews, and any additional letters or information provided by the applicant."

The school also said the percentage of Asian American students admitted has grown from 17% to 21% in a decade, while Asian Americans represent around 6% of the U.S. population. Harvard further claimed that it had studied more than a dozen race-neutral admissions alternatives and allegedly found none "promote Harvard’s diversity-related educational objectives as well as Harvard’s … admissions program while also maintaining the standards of excellence that Harvard seeks in its student body."

Using the same data given to the plaintiffs, UC Berkeley economist David Card testified on behalf of Harvard and claimed in a report that SFFA's analysis of the personal ratings excluded applications from a sizable percentage of the applicant pool, personal essays, and letters of recommendation from teachers and guidance counselors and that there was no statistically significant difference in personal scores compared to white students. Furthermore, Card claimed that if SFFA's analysis showed that the personal ratings assigned to Asian Americans were unexpectedly poorer, Asian Americans also unexpectedly scored higher on the academic rating than other racial groups, which would add complexity to the claim that Harvard is intentionally discriminating against Asian Americans. In response to Arcidiacono's analysis, Harvard contended that Arcidiacono had "mined the data to his advantage" by excluding applicants that received preferable treatment due to being legacies, athletes, the children of staff and faculty, including Asian-Americans. Harvard also argued that the documents the plaintiffs alleged as proof of discrimination against Asian Americans represented "a preliminary and incomplete analysis" that Harvard's Office of Institutional Research (OIR) conducted "without the benefit of the full admissions database or a full understanding of the admissions process" and that "[the] OIR documents themselves directly acknowledge various missing data and aspects of the admissions process that are not taken into account."

Various students, alumni and external groups filed amici briefs on both sides.

Lower courts
In 2013, SFFA filed suit against Harvard in U.S. District Court in Boston, stating that the university's admission practices were unconstitutional. In 2019 a district court judge upheld Harvard's limited use of race as a factor in admissions, stating that SFFA had provided no evidence that Asian Americans, or any other racial groups, had been harmed by it. In 2020, the U.S. Court of Appeals for the First Circuit affirmed the district court's ruling. In 2021, SFFA petitioned the Supreme Court, which agreed to hear the case.

In October 2019, Judge Allison D. Burroughs ruled that Harvard College's admissions policies do not unduly discriminate against Asian Americans. While the system is "not perfect", Burroughs ruled, it nonetheless passes constitutional muster. In her ruling, Burroughs states that there were "no quotas" in place at Harvard, despite acknowledging that the school attempts to reach the same level of racial diversity each year and "uses the racial makeup of admitted students to help determine how many students it should admit overall."

In February 2020, SFFA filed an appeal in the United States Court of Appeals for the First Circuit. The court heard oral arguments in mid-2020 and ultimately ruled in late 2020 in favor of Harvard, concluding that Judge Burroughs had not erred in her ruling and major factual findings. The Justice Department filed friend-of-the-court briefs in both the initial hearing and the appeal, arguing that Harvard imposes "a racial penalty by systematically disfavoring Asian American applicants".

Supreme Court
SFFA petitioned the Supreme Court to review both the First Circuit's decision in the Harvard case, which focused on the impact of the admissions process on Asian Americans, and a similar decision from the Middle District of North Carolina, Students for Fair Admissions v. University of NC, et al., which focused on the impact on both Caucasian and Asian American applicants at the University of North Carolina and which had been decided in the school's favor in October 2021. Both petitions sought the court to overturn Grutter v. Bollinger. In Harvard, SFFA asked if Harvard's admission practices were in violation of Title VI of the Civil Rights Act given possible race-neutral selection processes, while in North Carolina, they asked if a university can reject a race-neutral admission process if they believe they need to protect the diversity of the student body and quality of education.

Harvard filed an opposing brief seeking to have SFFA's petition rejected by the Supreme Court. In June 2021 the Court requested that the U.S. government submit a brief of its stance on the case, and in December the Solicitor General of the United States under the Biden administration urged the Supreme Court to reject the appeal.

The Supreme Court certified both petitions on January 24, 2022, and consolidated them under Harvard. After Ketanji Brown Jackson testified during her confirmation hearing that she would recuse herself from the case because she is on the Harvard Board of Overseers, the Supreme Court separated the two cases, allowing her to participate in the UNC case. Both cases were argued on October 31, 2022.

Amicus briefs
The Court received thirty-three amicus briefs in support of SFFA, and sixty in support of Harvard and UNC.

Among those in support of SFFA, fourteen senators and 68 representatives, as well as 19 states, wrote that Grutter was inconsistent with the Equal Protection Clause. Others wrote that the admission policies at Harvard and the University of North Carolina were discriminatory in that any favoritism towards one race results in discrimination towards others. Other arguments in the SFFA-supporting briefs, including those from Cato Institute and the Pacific Legal Foundation, considered that affirmative action policies are generally arbitrary, do not enhance diversity on campuses, and also violate the allowance for federal funding under Title VI.

In support of the universities, both the Biden administration and several current and former senators wrote that historically, both the legislative and executive branches have worked to combat racial imbalances through affirmation action and are not intended to violate Title VI. Sixty-five senators and representatives stated that despite both Brown and Grutter, segregation at K–12 schools continues to worsen, and affirmative action policies are needed to fight racial imbalance. Several groups, including the American Bar Association, the American Psychological Association, and the American Civil Liberties Union, wrote to support that racial diversity is essential to college and beyond.

A number of other Asian American groups have submitted amicus briefs in support of race-conscious admissions policies and Harvard. They include the Asian American Legal Defense and Education Fund, representing itself and 44 other Asian American groups and higher education faculty, and Asian Americans Advancing Justice - Los Angeles, representing several Asian American students. The NAACP Legal Defense and Education Fund filed a brief in support of Harvard, representing 25 Harvard student and alumni organizations consisting of "thousands of Asian American, Black, Latino, Native American, and white students and alumni." One legal publication subsequently argued that Harvard's admissions procedures "disadvantage the very African American and Hispanic students best positioned to bring instructive and underrepresented perspectives to the college".

Opinions
Both Harvard and North Carolina were decided jointly on June 29, 2023, with the Court ruling that race-based admissions adopted by both Harvard University and UNC were unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. Jackson had recused herself in Harvard, resulting in a 6–2 vote, while she joined the dissents in North Carolina, resulting in a 6–3 vote there. The majority opinion, written by Roberts, stated that the use of race was not a compelling interest, and the means by which the schools attempted to achieve diversity (tracking bare racial statistics) bore little or no relationship to the purported goals (viewpoint and intellectual diversity and developing a diverse future leadership). It was noted however that this prohibition on the use of race in deciding who would be accepted did not stop universities from considering a student's discussion of how their race has impacted their life "so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university."

In an unusual move, both Thomas and Sotomayor elected to read portions of their separate opinions from the bench as part of the announcement of the decision. Thomas's reading of his concurrence was the first time any justice had read a concurring opinion from the bench in almost 10 years.

Majority opinion
In the majority opinion, Justice Roberts wrote that the Equal Protection Clause of the Fourteenth Amendment applies "without regard to any difference of race, of color, or of nationality" and thus must apply to every person. As such, "Eliminating racial discrimination means eliminating all of it", adding that "For '[t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color.' " Roberts wrote that the affirmative action programs "lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points. We have never permitted admissions programs to work in that way, and we will not do so today".

Concurrences
Justices Thomas, Gorsuch, and Kavanaugh each submitted their own concurring opinions. In his concurrence, Justice Thomas laid out an originalist argument for the "colorblind constitution" and also cited statistics that indicate race-conscious admissions to universities are done at the expense of a student's individual value. Thomas also wrote:

"While I am painfully aware of the social and economic ravages which have befallen my race and all who suffer discrimination, I hold out enduring hope that this country will live up to its principles so clearly enunciated in the Declaration of Independence and the Constitution of the United States: that all men are created equal, are equal citizens, and must be treated equally before the law."Although Justice Gorsuch joined the majority opinion, his concurrence emphasized that Title VI of the Civil Rights Act bars affirmative action. That statute barred discrimination "on the ground of" race, so Justice Gorsuch reasoned that affirmative action was forbidden by statute regardless of any constitutional arguments.

Dissents
In a dissenting opinion joined by Justice Kagan and Justice Jackson, Justice Sotomayor wrote that "Ignoring race will not equalize a society that is racially unequal. What was true in the 1860s, and again in 1954, is true today: Equality requires acknowledgment of inequality." Sotomayor wrote that the majority opinion's "interpretation of the Fourteenth Amendment is not only contrary to precedent and the entire teachings of our history ... but is also grounded in the illusion that racial inequality was a problem of a different generation."

In a separate dissenting opinion, Justice Jackson wrote: "With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces 'colorblindness for all' by legal fiat. But deeming race irrelevant in law does not make it so in life...It would be deeply unfortunate if the Equal Protection Clause actually demanded this perverse, ahistorical, and counterproductive outcome. To impose this result in that Clause's name when it requires no such thing, and to thereby obstruct our collective progress toward the full realization of the Clause's promise, is truly a tragedy for all of us."

Justice Jackson's dissent was criticized for falsely claiming that "for high-risk Black newborns, having a Black physician more than doubles the likelihood that the baby will live, and not die." Justice Jackson based this claim on an amicus brief that misrepresented the findings of a study examining mortality rates in Florida newborns between 1992 and 2015.

College admissions
Outgoing president of Harvard University Lawrence Bacow said that Harvard will comply with the law but remains steadfast in its belief that "deep and transformative teaching, learning, and research depend upon a community comprising people of many backgrounds, perspectives, and lived experiences". The University of North Carolina also said that they would comply with the law, but were disappointed by the court's decision.

Corporate diversity programs
Will Hild, director of the conservative advocacy group Consumers' Research said that Students for Fair Admissions v. Harvard puts a "wind in the sail" of groups that seek to end diversity, equity, and inclusion programs. Although the case regards education, employers may reassess their policies, according to former Equal Employment Opportunity Commission lawyer Stephen Paskoff.

Support
Former president Donald Trump said, "This is a great day for America. People with extraordinary ability and everything else necessary for success, including future greatness for our country, are finally being rewarded. This is the ruling everyone was waiting and hoping for." Former vice president Mike Pence said, "There is no place for discrimination based on race in the United States, and I am pleased that the Supreme Court has put an end to this egregious violation of civil and constitutional rights in admissions processes, which only served to perpetuate racism."

Florida Governor and 2024 presidential candidate Ron DeSantis said, "College admissions should be based on merit and applicants should not be judged on their race or ethnicity. The Supreme Court has correctly upheld the Constitution and ended discrimination by colleges and universities." 2024 presidential candidate Vivek Ramaswamy wrote on social media that "affirmative action is a badly failed experiment: time to put a nail in the coffin & restore colorblind meritocracy."

Republican Senators Mitch McConnell, Tom Cotton, Tim Scott, and Marsha Blackburn each voiced their support for the decision.

Opposition


In a speech, president Joe Biden said, "This is not a normal court" and that the United States needed "a new path forward that is consistent with the law."

Senate Majority leader Chuck Schumer said, "The Supreme Court ruling has put a giant roadblock in our country's march toward racial justice." Other Congressional Democrats, such as Senator Cory Booker, House Minority leader Hakeem Jeffries, and Congressman Hank Johnson, voiced their disagreement with the decision.

Former president Barack Obama said, "Like any policy, affirmative action wasn't perfect. But it allowed generations of students like Michelle and me to prove we belonged. Now it’s up to all of us to give young people the opportunities they deserve  —  and help students everywhere benefit from new perspectives." Former First Lady Michelle Obama stated, "My heart breaks for any young person out there who’s wondering what their future holds — and what kinds of chances will be open to them."

Civil rights
President and CEO of the NAACP, Derrick Johnson, said that "affirmative action exists because we cannot rely on colleges, universities, and employers to enact admissions and hiring practices that embrace diversity, equity and inclusion," and that "Race plays an undeniable role in shaping the identities of and quality of life for Black Americans. In a society still scarred by the wounds of racial disparities, the Supreme Court has displayed a willful ignorance of our reality."

President and executive director of the Lawyers' Committee for Civil Rights Under Law, Damon Hewitt, said that "No matter what this court says, we will continue to fight. No matter what this court says, nothing can deprive us of what we call a race conscious future. The future that we deserve, the future that students deserve. Because affirmative action and holistic admissions is not a handout. It's not even really a hand up. It is what students deserve when they bring their whole selves to the table".

Founder of Students for Fair Admissions, Edward Blum, called the ruling "the beginning of the restoration of the colorblind legal covenant that binds together our multi-racial, multi-ethnic nation", adding that "These discriminatory admission practices undermined the integrity of our country's civil rights laws".

Universities
President of the University of California system, Michael V. Drake, said in a statement that the ruling ends a "valuable practice that has helped higher education institutions increase diversity and address historical wrongs over the past several decades." University of Southern California president Carol Folt said that "we will not go backward." and that "This decision will not impact our commitment to creating a campus that is welcoming, diverse, and inclusive to talented individuals from every background". President of Johns Hopkins University Ron Daniels called the court's ruling a "significant setback in our efforts to build a university community that represents the rich diversity of America." Rice University officials called the ruling "disappointing."

Columbia University spokesperson Ben Chang said that "Diversity is a positive force across every dimension of Columbia, and we can and must find a durable and meaningful path to preserve it". The University of Pennsylvania said that "In full compliance with the Supreme Court's decision, we will seek ways to admit individual students who will contribute to the kind of exceptional community that is essential to Penn's educational mission".

Stacy Hawkins, vice dean and professor at Rutgers Law School, said that despite the ruling, colleges and universities can continue to employ "race-neutral" means to promote diversity, such as increased consideration of socioeconomic status and targeting certain schools for recruitment, both of which are said to correlate with race and ethnicity. Institutions in California and Florida have already adopted similar methods, because they are not allowed to consider race and ethnicity under their respective state law.

Other
Attorney General Merrick Garland said in a statement that "the Department of Justice remains committed to promoting student diversity in higher education using all available legal tools. In the coming weeks, we will work with the Department of Education to provide resources to college and universities on what admissions practices and programs remain lawful following the Court’s decision."

Michael Wang, whom USA Today described as "a poster child for the anti-affirmative action movement" who had filed discrimination complaints against three universities with the federal Department of Education’s Office for Civil Rights in 2013 and met with SFFA's founder, later said, "a part of me regrets what I’ve put forward". Wang further clarified that he did not regret filing his three original complaints and that while he was not "anti-affirmative action", he supports reforming it.

America First Legal, a conservative litigation outfit headed by former Trump adviser Stephen Miller, sent letters to more than 200 U.S. law schools within days of the Court's ruling threatening them with lawsuits unless they immediately terminate all race and sex preferences in student admissions, faculty hiring, and law-review membership or article selection.

A 2023 poll from the nonpartisan Pew Research Center showed that the majority of Americans disapprove of the use of race and ethnicity in college admissions.