On June 29, 2023, the United States Supreme Court considered whether race conscious admission decisions by Harvard and the University of North Carolina were lawful under the Equal Protection Clause of the Fourteenth Amendment. In a 6-3 decision, the Court held that the Harvard and UNC admissions programs, which based decisions on race in certain circumstances, were unlawful under the Equal Protection Clause.

In reaching its decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, the Court reviewed and, in essence, overturned prior precedent on affirmative action in the higher education context. More specifically, since 1978, the Court had continually upheld race as a factor that could be weighed in addition to an applicant’s other attributes. In fact, as recently as 2016, the Court had found that student diversity “cultivat[es] leaders with legitimacy in the eyes of the citizenry,” “promotes cross-racial understanding,” “helps to break down racial stereotypes,” and “prepare[s] students for an increasingly diverse workforce and society.”

In departing from (and effectively overturning) this long-standing precedent, the Court found that consideration of race had led to an overall decrease in Asian American and white students being admitted to Harvard and, as such, the use of race in the admissions process “unavoidabl[y] employ[ed] race in a negative manner, involve[d] racial stereotyping, and lack[ed] meaningful end points.”

The Key Takeaway

Writing for the majority, Chief Justice Roberts noted that, in the admissions process, a student is not prohibited from discussing how race has affected the student’s 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.” Notwithstanding what the student shares, the college or university, however, must treat students “based on his or her experiences as an individual – not on the basis of race.”

Understandably, this decision will significantly limit, if not end, race-based admissions decisions; however, universities may still seek to put in place admission programs that increase diversity without explicitly taking race into account. In fact, many universities have already issued statements confirming their commitment to promoting diversity within their student body. 

On a different front, this decision may certainly have implications for the workplace. Employers with internship programs or leadership training programs that just focus on certain ethnic or racial groups may need to review and reconsider those programs. Likewise, it is possible that this decision could affect affirmative action requirements applicable to federal contractors. Employer diversity, equity, and inclusion (DEI) initiatives may also be challenged. The bottom line is we do not entirely know how or to what extent the effects of this decision will spill over to and implicate fair employment laws or current day DEI initiatives. But one thing is certain – there’s more to come.

The author thanks summer law clerk Andrew Green for his assistance.


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