January DEI – SCOTUS’ Color-Blind Doctrine: A Brief Look at the Ban on Race-Conscious Affirmative Action in Higher Education

By Oyango A. Snell, Esq., CAE
January 2024

For decades, colleges and universities in the United States have used race-conscious admissions policies to help achieve a diverse student population and enhance equity to correct historical discriminatory practices against women and people of color. Regents of Univ. of California v. Bakke (1978) serves as the foundation of this principle, where the Supreme Court of the United States (SCOTUS) upheld the constitutionality of race-based admissions, determining that diversity in the student body could be a “compelling state interest” and therefore an exception to the Equal Protection Clause of the 14th Amendment. Additionally, SCOTUS declared in Grutter v. Bollinger (2003) that race-based admissions policies must avoid stereotyping or harming non-minority applicants and eventually come to an end.

Race-conscious admissions policies at higher education institutions took a huge blow in an opinion issued by SCOTUS in the landmark decision, Students for Fair Admissions (SFFA) v. Harvard (consolidated with Students for Fair Admissions v. University of North Carolina) (2023). SFFA sought relief from violations of Title VI of the Civil Rights Act of 1964 for discrimination against Asian American applicants in favor of white applicants as a result of the schools’ race-conscious admissions processes. On June 29, 2023, SCOTUS issued a 6-3 majority opinion declaring that race-based affirmative action programs in higher education violate the Equal Protection Clause of the 14th Amendment. SCOTUS addressed two pivotal inquiries: (1) May institutions of higher education use race as a factor in admissions and (2) If so, does Harvard College’s race-conscious admissions process violate Title VI of the Civil Rights Act, which provides, in relevant part, that “[n]o person in the United States shall, on the ground of race, color, or national origin…be subjected to discrimination under any program or activity receiving Federal financial assistance?”

SCOTUS determined that Harvard’s race-based admissions process failed to meet the standards of Bakke and Grutter and could not show a compelling interest in a measurable way. SCOTUS further determined that the program failed to avoid racial stereotypes and did not provide a logical termination point when race-based admissions would cease. However, SCOTUS noted that a university may consider an applicant’s discussion of how race affected the applicant’s life, where the discussion is linked to a specific quality of character or unique ability that the applicant can contribute to the university.

While many civil and human rights advocates, educators, legal scholars, and business professionals were shocked by the ruling that overturned 45 years of legal precedents, some folks knew and believed this ruling was par for the course given SCOTUS’ recent opinion in Dobbs v. Jackson Women’s Health Organization (2022), which overturned Roe v. Wade (1973). In fact, we should prepare to see similar challenges in private and public sector employment brought by conservative groups like SFAA. Politics aside, however, I believe that diversity, equity, inclusion, belonging, and accessibility programs throughout the United States will not only survive the efforts launched by race-neutral and color-blind policy advocates but also thrive in the future.

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Oyango A. Snell serves as an adjunct professor of law at the University of the Pacific McGeorge School of Law. With nearly 20 years of experience in legal, legislative, regulatory, and corporate affairs, Oyango is known for his energetic leadership, motivational speaking, and endless innovation, transforming the organizations and teams he represents through the execution of transparent business practices, effective communication, human development, and empowerment. An Ohio licensed attorney, Oyango spent most of his career in government affairs. Oyango recently served as the CEO and Executive Director of the California Lawyers Association and its affiliated charitable arm, the California Lawyers Foundation.