Since 1961, affirmative action has been seen as one way to rectify the damage done by slavery and its lingering effects. It was first officially introduced into United States law with President Kennedy’s Executive Order 10925 which directed government contractors to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.”2Affirmative action within college admissions began with Title VI of the Civil Rights Act of 1964, which implemented various antidiscrimination provisions. Conversely, because of affirmative action, qualified people of color have been accused of being ‘affirmative action hires’ or only having been admitted to a college because of their race, and not their qualifications. Most recently, Justice Ketanji Brown Jackson was accused of being an ‘affirmative action pick’ after President Joseph Biden announced that he would only consider a Black female candidate. Historically, white people have contested affirmative action, as they believed that Black people were receiving an unfair advantage. Most recently, Asian Americans have argued that affirmative action has harmed them as well because it is creating an unconstitutional quota of Asians admitted or hired, instead of hiring all qualified Asian Americans. In Students for Fair Admissions Inc. (SFFA) v. President & Fellows of Harvard College (2022), Asian applicants to Harvard allege that Harvard College engages in unconstitutional racial balancing through a quota system.
In this Note, I will evaluate the use of race-conscious admissions practices within institutions of higher education, focusing on Students for Fair Admission. I will demonstrate, first, that Harvard does not violate the U.S. Supreme Court’s affirmative action precedent and only utilizes race in line with that precedent. I also argue that no recent developments warrant review of the Grutter framework. This Note will argue that Harvard’s use of race is narrowly tailored pursuant to Supreme Court precedent and that admissions practices, like Harvard’s, which do not include a quota, evaluate candidates on a holistic basis, and periodically reevaluate their admissions practices are also narrowly tailored pursuit to Supreme Court precedent and are therefore constitutional.
II. Response to Petitioners
When Title VI of the Civil Rights Act applies, as it does in this case, a university is prohibited from utilizing race in its admissions unless it has sufficiently proven to the satisfaction of the reviewing court that “no workable race-neutral alternatives would produce the educational benefits of diversity.”3 The race-conscious admissions program must also survive strict scrutiny.4 Harvard has demonstrated that no workable race neutral alternative was possible through extensive reports over many years including the Ryan Committee, the Smith Committee, and the Khurana Committee.5 The Khurana Report demonstrated four key goals for the use of race in admissions: “(1) training future leaders in the public and private sectors as Harvard’s mission statement requires; (2) equipping its graduates and itself to adapt to an increasingly pluralistic society; (3) better educating its students through diversity; and (4) producing new knowledge stemming from diverse outlooks.”6 The Khurana report also concluded that “(1) race ‘plays an irreplaceable role in [Harvard’s] conception of a diverse student body’ and (2) Harvard cannot and does not treat race monolithically because students of the same race do not ‘share the same views, experiences, or other characteristics.’”7
Despite the petitioner’s argument that the lower courts gave the benefit of the doubt to Harvard and its testimony that no workable race neutral option was possible, it is in accordance with the Supreme Court’s historical deference practices to defer to educational institutions and their abilities to choose their student body.8 The Court has previously ruled in a landmark affirmative action case, Grutter v. Bollinger (2003), that “[t]he decision to pursue ‘the educational benefits that flow from student body diversity’… is, in substantial measure, an academic judgment to which some, but not complete, judicial deference is proper.’”9 The Court has historically recognized the “the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition.”10
A. Race-Neutral Alternatives
Since Harvard has demonstrated that there are no viable no race neutral options, Harvard’s race-conscious admissions procedures must survive strict scrutiny. To survive strict scrutiny, Harvard’s use of race must further a compelling interest and be narrowly tailored toward achieving that interest.11 The Supreme Court ruled in Grutter that the narrowly tailored use of race to achieve a diverse student body is a compelling interest.12 The Court should affirm that the narrowly tailored use of race is a compelling interest.
A university’s admissions process cannot be narrowly tailored if it utilizes racial balancing and/or quotas, uses race as a “mechanical plus factor,” or is used despite workable race-neutral alternatives.13 Harvard does not engage in racial balancing or quotas as the share of Asian students admitted is almost in direct correlation with the number of Asian students that applied each year. As the respondents point out in their brief, this is the “opposite of what one would expect if Harvard imposed a quota.”14
Harvard does not use race as a mechanical plus factor because it utilizes a broad holistic and individualized review of each prospective student.15 Harvard’s admission process goes through multiple rounds and past multiple eyes including alumni and admissions committees to ‘score’ students’ applications.16 At any point in the admissions process, admissions officers may provide ‘tips’ to applicants on a variety of aspects, including, but not limited to race.17 The Court should affirm that the use of race as a basis for tips are constitutional so long as applicants can gain tips in other ways besides race.18 Harvard’s goal is to achieve a diverse student body, and not just a racially diverse student body. Harvard “is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups,” but “a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.”19 Institutions of higher education that seek to achieve diversity beyond ethnic diversity within their admissions practices, like Harvard, are not using race as a mechanical plus factor and are therefore also constitutional.
Lastly, Harvard utilizes ‘one-pagers’ which provide admissions officers with a brief “snapshot of various demographic characteristics of Harvard’s applicant pool and admitted class and compares them to the previous year.”20 These sheets summarize the applicants on a variety of factors, including “gender, geographic region, indented concentration, legacy status, whether a student applied for financial aid, etc.”21 These sheets are used by admissions officers to ensure that there isn’t a dramatic dropoff in “applicants with certain characteristics – including race – from year to year.”22 The use of “one-pagers” should be permissible in pursuit of gaining a “snapshot of various demographic characteristics of Harvard’s applicant pool.”23 The Court approved the use of “daily reports” in Grutter and Fisher v. University of Texas (2016) and should find that these two are substantially similar in that they both attempt to “forecast” the demographics of the applicants as well as ensuring there is no “dramatic drop off” in the diversity of an incoming class.24
B. Use of Personal Ratings
Personal ratings are a central component of SFFA’s claim against Harvard. Applicants to Harvard are assigned a personal rating score to “measure the positive effects applicants have had on the people around them and the contributions they might make to the Harvard community.”25 Some factors that contribute to an applicant’s personal rating score are “perceived leadership, maturity, integrity, reaction to setbacks, concern for others, self-confidence, and likability.”26 While the Court should find the use of ‘personal ratings’27 permissible insofar that it survives strict scrutiny and is narrowly tailored, they are ill advised and distasteful. While Harvard may have an interest in recruiting vibrant and likable people, it is far from a perfect indicator of how successful one would be at Harvard. While Harvard maintains that race does not factor into a student’s personal rating,28 it is undeniable that prospective Asian students received lower personal scores and were described with adjectives such as “quiet,” “flat,” “shy,” and “understated.”29 Whether this be a case of correlation or causation, the Court should recommend that schools find a new, and possibly less subjective, way to evaluate the level of charisma of its applicants.
III. Revisiting Grutter
SFFA fails to persuade that the Supreme Court should overrule Grutter and hold that Title VI of the Civil Rights Act prohibits the use of race in admissions for three reasons. First, Grutter and its framework are long settled law. Second, the Grutter standard remains workable. And third, it is broadly relied upon throughout universities and prospective students in the United States.
SFFA does not provide sufficient and compelling reasoning to revisit the Court’s settled precedent in Grutter. SFFA unconvincingly argues that the precedent is not settled because Grutter was a five-to-four decision, and thus leaves applicable precedent open to be revisited.30 While unanimous decisions are advantageous,31 some of the United States’ most influential and relied upon decisions were handed down in a five-to-four decision.32
SFFA also argues that the Court should overturn the Grutter framework because it is not a workable standard. Harvard accurately argues that “unlike those instances in which the Court has reconsidered precedents that have been undermined by subsequent decisions, the Court has consistently reaffirmed Bakke’s approval of holistic admissions programs that consider race as one of many factors.”33 However, more importantly, SFFA provides no evidence that universities and colleges are unable to adequately apply this Court’s precedent.
A. Reliance Interests in Grutter
Bakke, Grutter, and Fisher have “generated significant reliance interests over the past 40 years, further counseling against certiorari.”34 Since Bakke, Justice Lewis Powell’s decision has been a cornerstone of our nation’s jurisprudence “with [p]ublic and private universities across the Nation… modeling their own admissions programs” on Justice Powell’s opinion.35 While courts have the discretion to reconsider decisions that have been undermined by subsequent rulings, this is not the case here.36
The Court should seek to reaffirm the benefits of the narrowly tailored use of race-conscious admissions. Race-conscious admissions ensure that there is not a dramatic decline in the number of nonwhite students admitted and attending colleges.37 Without race-conscious admissions, the acceptance rate for African Americans would fall from 33.7% to 12.2%, and the acceptance rate of Hispanic students would fall from 26.8% to 12.9%.38 Additionally, without reaffirming that the narrowly tailored use of race-conscious admissions is permissible, it is possible that colleges may resort to “camouflage” and still use race-conscious admissions secretly, and certainly not in a narrowly tailored manner.39 While we must “avoid conflict” with the Equal Protection Clause, the U.S. Constitution “is color conscious to prevent discrimination being perpetuated and to undo the effects of past discrimination.”40
Harvard College is one of the United States’ most competitive colleges and as such, it seeks to recruit a wide range of students that can succeed at Harvard and beyond in order to continue their distinguished legacy. In pursuit of this interest, Harvard utilizes an extensive admissions process that includes race-conscious considerations. In accordance with both the District Court and Court of Appeals, the Court should find that Harvard’s admissions practices are narrowly tailored pursuant to Supreme Court precedent. However, other institutions of higher education around the country should note the extensive admissions process that Harvard utilizes in order to be in accordance with precedent. In order for other colleges and universities to utilize race-conscious admissions practices they must be narrowly tailored in so far as it does not utilize race in a mechanical manner and reviews applications on an individualized basis through an extensive holistic review.41 They must also provide a “reasoned, principled explanation for its decision to pursue these goals” through reports and committees.42 When used correctly, race-conscious admissions practices can help to rectify the damage that has been done, and continues to be done, by racism in the United States. Admissions policies, like Harvard’s, can help to ensure that there is not a dramatic drop off in people of color in their student bodies while also giving each candidate a fair and individualized assessment.
- *B.A. in Political Science, Fordham College at Rose Hill, Class of 2022. I would like to give special thanks to my Introduction to the American Legal System professor, Father Brendan Horan, who introduced me to the legal field and inspired me to follow my passion for the law. Thank you also to the FULR Editorial Board and to my family who have provided endless support in this new endeavor.
- Exec. Order No. 10925, 3 C.F.R. 448 (1961).
- Fisher v. Univ. of Tex. (“Fisher I ”), 570 U.S. 297, 312 (2013).
- Id. at 298.
- Students for Fair Admission, Inc. v. President & Fellows of Harvard Coll., 980 F.3d 157, 175-6 (1st Cir. 2020).
- Id. at 186.
- Id. at 175.
- Grutter v. Bollinger, 539 U.S. 306, 328 (2003).
- Id. at 330.
- Id. at 329.
- Fisher v. Univ. of Tex. (“Fisher II ”), 579 U.S. 365, 376 (2016).
- Grutter, 539 U.S. at 307; Fisher I, 570 U.S. at 310.
- Students for Fair Admission, Inc., 980 F.3d at 187; Gratz v. Bollinger, 539 U.S. 244, 339 (2003); Fisher I, 570 U.S. at 312.
- Harvard Supplemental Brief for Respondent, at 2, Students for Fair Admission Inc. v. President & Fellows of Harvard College, __ U.S. __ (2023) (No. 20-1199); Students for Fair Admission, Inc., 980 F.3d at 188.
- Students for Fair Admission, Inc., 980 F.3d at 180.
- Id. at 176.
- Id. at 170.
- Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 722 (2007) (quoting Grutter, 539 U.S. at 324-5.
- Students for Fair Admission, Inc., 980 F.3d at 170-1.
- Id. at 171.
- Id. at 168.
- Id. at 167.
- Id. at 197.
- Harvard Supplemental Brief for Respondent, at 7, Students for Fair Admission Inc. v. President & Fellows of Harvard College, __ U.S. __ (2023) (No. 20-1199).
- E.g., Brown v. Bd. of Educ., 347 U.S. 483 (1954); e.g., Cooper v. Aaron, 358 U.S. 1 (1958).
- E.g., District of Columbia v. Heller, 554 U.S. 570 (2008); e.g., Citizens United v. FEC, 558 U.S. 310 (2010); e.g., Obergefell v. Hodges, 576 U.S. 644 (2015).
- Harvard Supplemental Brief for Respondent, at 6, Students for Fair Admission Inc. v. President & Fellows of Harvard College, __ U.S. __ (2023) (No. 20-1199).
- Harvard Supplemental Brief for Respondent, at 4, Students for Fair Admission Inc. v. President & Fellows of Harvard College, __ U.S. __ (2023) (No. 20-1199).
- Id. at 7 (quoting from Grutter, 539 U.S. at 323).
- Eboni S. Nelson et al., Assessing the Viability of Race-Neutral Alternatives in Law School Admissions, 102 Iowa L. Rev. 2187, 2192 (2017).
- Fisher I, 570 U.S. at 335-6 (Ginsburg, J., dissenting).
- Gratz, 539 U.S. at 302 (quoting United States v. Jefferson County Bd. of Ed., 372 F.2d 836, 876 (5th Cir. 1966)).
- See Gratz, 539 U.S. at 271-72; see also Fisher II, 579 U.S.
- Fisher I, 570 U.S. at 298.