By Alyssa Lazar, Esq.

On Thursday, June 29, 2023, the United States Supreme Court issued a long-awaited opinion regarding affirmative action programs at institutions of higher learning across the country. The Supreme Court ruled that colleges and universities can no longer take race into consideration as a specific basis in admissions. Chief Justice John Roberts, who wrote the majority opinion, concluded that the admissions programs at Harvard College and the University of North Carolina violated the Equal Protection Clause because they failed to offer “measurable” objectives to justify the use of race.

As it currently stands, the admissions process at Harvard College involves a multi-step process. During the final stage of that process, which is known as the “lop,” the admissions committee examines a list of tentatively admitted students. The committee is charged with winnowing the list further to arrive at the final class. Those that are cut from the class are placed on the “lop list.” In deciding which students to “lop,” the committee can and does take race into account.

The admissions process at the University of North Carolina also involves a multi-step process, but the first stage requires the admissions office to consider race and ethnicity as a factor in the review of all applications. This process is conducted by “admissions office readers” who then formulate opinions about whether a student should be offered admission and draft comments defending their decision. The opinion is forwarded to a review committee who approves or rejects the admission recommendation. The review committee is permitted to consider the applicant’s race in its decisions.

The Supreme Court invalidated these admissions processes under the Equal Protection Clause of the Fourteenth Amendment. In holding that the admissions processes did not survive strict scrutiny, the Supreme Court concluded that the “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.” Harvard’s admission process resulted in an 11.1% decrease in the number of Asian-Americans admitted to Harvard and an overall decrease in white students being admitted.

For the first time since 2019, Justices Elena Kagan and Ketanji Brown Jackson read their dissents from the bench, saying the opinion “rolls back decades of precedent and momentous progress.” The dissenting opinions instead would uphold the admission programs based on the view that the Fourteenth Amendment permits state actors to remedy the effects of societal discrimination through explicitly race-based measures. Chief Justice Roberts criticized the dissenting opinions, arguing that the dissents seek to promote “a judiciary that picks winners and losers based on the color of their skin.”

Shortly after the Supreme Court’s ruling on Thursday, U.S. EEOC Chair Charlotte A. Burrows issued a statement cautioning employers that the decision has no bearing on employment policies promoting equal opportunity in the workplace. Because the decision does not address employer efforts to foster a diverse and inclusive workforce, employers are permitted and encouraged to implement diversity, equity, inclusion, and accessibility programs for the benefit of its workers.

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The Bowles Rice Labor and Employment Law Team is closely monitoring this and related issues and will continue to share important details as they evolve. If you have questions or would like additional information, please contact a member of our team.