Supreme Court to Hear Case That Could Impact Diversity, Equity, and Inclusion Efforts On College Campuses Throughout the Country

Haellie Gordon[1], Fraternal Law Partners, hgordon@manleyburke.com

On January 24, 2022, the Supreme Court of the United States granted certiorari, and will hear the Students For Fair Admissions’ appeal in their challenge to race-conscious admission policies at Harvard University and at the University of North Carolina. The Students For Fair Admissions first sued Harvard University in 2014, claiming the school’s use of race as a factor in granting admission penalizes and discriminates against Asian American applicants on the basis of race. While their claim has so far been unsuccessful, the Students for Fair Admissions now request the Supreme Court completely eliminate the consideration of race in the university admissions processes..

This is not the first time the Supreme Court has heard challenges to race-based affirmative action in higher education. In Grutter v. Bollinger (2003), a prospective student of the University of Michigan Law School claimed that her rejection was due to the unconstitutional use of race in the University’s admissions decisions. The Supreme Court ultimately held that creating student body diversity in higher education institutions is a compelling government interest and justifies the use of race in the universities’ admissions process. The Court went on to reiterate the necessity that the use of race be narrowly tailored to achieving this government interest, which requires a good faith consideration of alternate, race-neutral methods.

Building upon Grutter, the Supreme Court also heard Gratz v. Bollinger in 2003. In Gratz, a University of Michigan undergraduate student challenged the University’s automatic grant of “points” to individuals with certain traits, such as those who were member to a minority group, attended a predominantly minority high school, or were recruited as athletes, among others. The Supreme Court ultimately held this to be an unconstitutional practice of affirmative action, as the allocation of “points” based on race made race the factor, not just a factor of a factor. The University’s policy ultimately failed to consider applicants as individuals and consequentially failed the requirements to be considered narrowly tailored to achieving student body diversity.

The 2003 Grutter majority opinion states “[t]he Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” While there is now a wide body of precedent to support the use of narrowly tailored race-conscious admissions decisions, it is entirely possible that the Supreme Court will overturn this precedent. A ruling for the Students For Fair Admissions’ challenge would not only affect the admissions process of universities across the nation, but would also impact the diversity, equity, and inclusion efforts of sororities, fraternities, and clubs across campuses nationwide. Fraternal Law will monitor this case as it progresses.

[1] Haellie Gordon is a law clerk at Manley Burke and is a first-year law student at the University of Cincinnati