With contributions from Emily Martin.

Students for Fair Admission (SFFA) sued Harvard University and the University of North Carolina (UNC) alleging that their consideration of race in admissions decisions violates Title VI of the 1964 Civil Rights Act (which prohibits federally funded programs and activities, including universities, from discriminating on the basis of race) and the equal protection clause of the 14th amendment. SFFA also asserted that Brown v. Board of Education stands for the proposition that any consideration of race in education is a violation of the 14th amendment equal protection clause.

SFFA is an organization founded by far-right legal strategist Edward Blum, who was also involved in the Fisher v. UT Austin cases that previously alleged race-conscious admissions violated the Constitution in arguments that were rejected by the Supreme Court in 2013 and 2016.

SFFA argued that just as the Supreme Court’s decision in Brown v. Board of Education overturned Plessy v. Ferguson (which held that de jure racial segregation was constitutionally permissible), so the Supreme Court should overturn Grutter v. Bollinger (a 2003 case in which the Supreme Court held that a diverse student body is a compelling governmental interest and institutions of higher education can consider race as one factor in a holistic admissions process).

The complaint against Harvard also alleged that their admissions process intentionally discriminates against Asian American students in violation of Title VI.

The Supreme Court found that the ways in which Harvard and UNC considered race in their admissions violated the Constitution. Technically, the Court held that as a private institution, Harvard violated Title VI, rather than the Constitution, but concluded any consideration of race that would violate the Constitution would also violate Title VI.

SFFA significantly limits the consideration of race in college admissions in a way that causes new difficulty for colleges’ admission diversity efforts. Specifically, the way Harvard and the University of North Carolina (UNC) applied race in their admissions policies violated the Constitution. However, the Supreme Court’s opinion also stated that colleges and universities can still consider the experiences that individual applicants share related to their race qualifications for admission.

Institutions of higher education can continue to pursue a wide variety of programs and initiatives to foster a diverse student body. This can include:

  • removal of standardized testing requirements
  • stronger recruitment efforts within underserved communities
  • more robust financial support for low-income and middle-income students
  • greater efforts to recruit, admit, support, and retain first-generation university students
  • ending “legacy” admissions

UNC Chapel Hill announced free tuition for in-state students whose families make less than $80,000 per year to protect diversity on its campus. Wesleyan University announced an end to “legacy” admissions.

tudents can discuss their race and experiences overcoming barriers related to their race in admissions essays and interviews and institutions of higher education can consider these experiences.

That being said, we can expect ongoing legal assaults on efforts to create diverse and inclusive student bodies. For example, there have been recent legal challenges to raceneutral admissions policies in specialty K-12 schools when these policies were adopted to promote diversity, with cases filed in Virginia, New York, and Massachusetts. These cases challenge efforts to foster a diverse student body through race-neutral initiatives like removing standardized testing requirements.

With regard to the overall application of this ruling, it is important for funders to remember, communicate, and encourage grantees to that this decision is limited to the consideration of race, as a plus, in college admissions, as Harvard and UNC implemented their admissions programs.

Specifically, this decision did not address affinity groups, outreach initiatives, recruitment strategies, race-neutral admissions policies, or Diversity, Equity, and Inclusion (DEI) programs. The decision does not change the law applicable to school districts’ efforts to increase diversity in K-12 schools including through race-conscious student assignment policies. The decision also does not change workplace anti-discrimination protections or the lawfulness of DEI programs and affirmative action in the workplace. Nor did this decision address the lawfulness of gender-conscious programs or programs taking into account other dimensions of identity beyond race.

We need to use every strategy possible to protect our multiracial democracy. Diversity in education should remain a core value along with ensuring that students from all backgrounds have a fair opportunity to learn and be prepared to become leaders in our institutions and communities. Investing in efforts to expand and defend civil rights protections and diversity, equity, and inclusion initiatives—all of which are under attack by extremists—is a key dimension of defending democracy because these protections and initiatives enable broad participation and leadership in our civic life.

These decisions also demonstrate the need for robust commitment to building a progressive judiciary at every level, focusing on both immediate needs and the long arc. Federal district and circuit courts, which decide thousands more cases than the Supreme Court each year, will play a key role in further interpreting and applying the Supreme Court’s recent decisions on race-conscious admissions as more challenges work their way through the lower courts.

There are currently dozens of unfilled judicial vacancies across the country, which provide the opportunity to reshape the federal judiciary with judges committed to equal right justice for all, advance gender justice. It is critical that judicial vacancies are filled with nominees committed to equal justice and rights for all who understand the impact of the law on the rights of women, girls, people of color, LGBTQI+ people, and people with disabilities. Funders can support organizations through engagement in 1) judicial pathways projects that identify and uplift judicial candidates with demographically and professionally diverse backgrounds committed to equal rights and justice for all, and 2) judicial nominations to educate the public and advocate post-nomination for nominees committed to equal justice and rights for all.