Legal Context

EducationCounsel provided a legal briefing on the U.S. Supreme Court’s June 2023 ruling in the Harvard and UNC admissions cases, some of which is summarized at a high level here. Institutions should confer with their own legal counsel, as the Academy and EducationCounsel, in this summary and at the meeting, are not providing legal advice to any institution.

While the Court ruled that Harvard’s and UNC’s diversity goals were not compelling and therefore could not support the consideration of race in admissions, the Court recognized that educational diversity is a “commendable” and “worthy” interest for institutions of higher education. It affirmed institutions’ ability to define their missions as they see fit, even as it eliminated one means (considering an applicant’s racial or ethnic status) to achieve a diversity-dependent mission.

Thus, institutions may still embrace the creation of equitable and diverse learning communities as central to the quality of their educational programs and missions without running afoul of federal nondiscrimination law. Even in states that impose limitations on public institutions, higher education institutions can still embrace a mission that aims to serve all students well and support their success.

The Court has long held that federal nondiscrimination law generally prohibits differential treatment of individuals based on their racial group status when conferring benefits and opportunities, with important exceptions for legally compelling aims and narrowly tailored means of achieving those aims. Preserving that broad framework, the Court ruled that the educational benefits for all students—in learning, leadership, civic readiness, and workforce preparedness—that are associated with learning in a diverse academic setting are amorphous and immeasurable by a court, so not legally compelling, ending a forty-five-year-long exception to the federal nondiscrimination mandate. The only legally compelling interest that is currently recognized by the Court in the education context is remedying the current effects of an institution’s own intentional discrimination. The speakers noted that it may be possible, in the mid-to longer-term, to develop other legally compelling interests and strategically determine the right time and facts on which to test them.

Further, the Court held that the design of the two universities’ admissions programs did not satisfy “narrow tailoring” requirements because they lacked an end date and used race as a “zero sum” factor, with negative effects for some races.

The speakers emphasized that, while the ruling increases the challenges of building a diverse and equitable learning community of students, with an innovator’s mission-driven mindset and an understanding of the legal design parameters, institutions still have many avenues to appropriately advance equity and diversity. Importantly, the Court explicitly endorsed consideration of an individual’s knowledge, skills, character qualities, aspirations, and inspirations gained from their lived experience, including their lived experience of race in society. In so doing, the Court admonished institutions not to make assumptions about what a student’s experience has been based on societal inequities and instead required them to make individual assessments of applicants’ merit. This allows institutions to further inquire about student experiences as part of a holistic approach.

The Court also left unchanged many additional avenues to advance diversity and equity; for instance, the consideration of legally “neutral” criteria (such as socioeconomics, low-resourced school background, geographical diversity, first-generation status) that advance authentic institutional priorities other than increasing racial diversity but still produce that ancillary benefit to some extent. Inclusive race-targeted outreach and recruitment efforts that do not confer material benefits based on race but do help build a broadly diverse applicant pool, as well as criteria that do not consider any individual’s race but do value expertise, knowledge, and actions to advance diversity and equity are still permitted. Among the resources to guide these efforts is the American Association for the Advancement of Science’s Diversity and the Law program—developed in concert with EducationCounsel and supported by the Alfred P. Sloan Foundation—whose materials are being updated to account for the Court’s recent decision.1

While the ruling concerns admissions, the federal nondiscrimination principles of the Court’s decision will likely have some effect on virtually any race-conscious conferral of benefits or opportunities to individual students, including recruitment, scholarships, mentoring, research experiences, and other enrichment and pathways programs. (The ruling does not bind employment, however, which is subject to a different, remedial legal regime.) The student diversity and equity policies of a correspondingly broad range of higher education institutions, from community colleges to HBCUs and MSIs, from liberal arts colleges to Research 1 (R1) universities, are impacted. However, more nuanced, programmatic options—many of which do not trigger federal nondiscrimination law—make the ruling’s impact different in non-admission contexts.

The speakers outlined legal strategies that institutions could adopt to modify existing policies and practices and to pursue new systems. They are developing further guidance to help institutions assess green- and yellow-light strategies within legal parameters. This guidance will help institutions assess legal risk within the context of overall mission risk while avoiding unreasonable and excessive legal risks that threaten the achievement of their mission.

Endnotes

• 1American Association for the Advancement of Science, “Diversity and the Law,” 2023.