Q & A with GW Law Dean Dayna Bowen Matthew on the Supreme Court Opinions Banning the Use of Racial Considerations in Higher Education Admissions

The Supreme Court ruled Thursday that admissions programs at Harvard and the University of North Carolina violated the 14th Amendment’s equal protection clause.

June 29, 2023

The Supreme Court building of the United States, with an American flag waving in the foreground

The Supreme Court building of the United States of America.

The U.S. Supreme Court reversed decades of precedent Thursday with its decision that ends the use of race-conscious college admissions policy, ruling twice in favor of the plaintiff in the Students for Fair Admissions v. University of North Carolina and Students for Fair Admissions v. Harvard. Chief Justice John Roberts wrote the opinion for both. The UNC case was decided by a 6-3 vote, while the Harvard case was 6-2 as Justice Ketanji Brown Jackson, an alumna of its law school, recused herself.

The court’s majority ruled that the admissions programs at both Harvard and UNC violate the equal protection clause of the 14th Amendment.

In the Harvard case, filed initially in 2014, the plaintiff argued that the Boston-based institution violated Title VI of the Civil Rights Act by penalizing Asian American applicants, engaging in racial balancing, overemphasizing race and rejecting workable race-neutral alternatives. In the UNC case, Students for Fair Admissions asserted that the university gives preference to underrepresented minority applicants to the detriment of white and Asian American applicants, while ignoring race-neutral alternatives.

In dissent, Justice Sonia Sotomayor stated that Thursday’s ruling “holds that race can no longer be used in a limited way to achieve such critical benefits ”and that with its holding, the Supreme Court“cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.”

In the landmark 2013 Grutter v. Bollinger case, the Supreme Court said that a student admissions process that favors underrepresented minority groups does not violate the 14th Amendment’s equal protection clause if it considers other factors evaluated on an individual basis for every applicant. Now, Thursday’s opinion says that “respondents [UNC and Harvard] have failed to present an exceedingly persuasive justification for separating students on the basis of race that is measurable and concrete enough to permit judicial review, as the equal protection clause requires.”

Affirmative action has long been a hotly debated and contested topic since the Supreme Court ruled in the 1978 Regents of University of California v. Bakke case that a university's use of racial "quotas" in its admissions process was unconstitutional, but a school's use of affirmative action to accept more minority applicants was constitutional in some circumstances.

GW Law Dean Dayna Bowen Matthew spoke to GW Today to offer expertise on what these rulings mean for broadly and for institutions of higher education going forward.

GW Law Dean Dayna Bowen Matthew in a red jacket
GW Law Dean Dayna Bowen Matthew (Photo courtesy of GW Law)

Q: What are some of the key takeaways we should know regarding Thursday’s opinions?

A:  The first thing we should know is that simply stating that diversity provides an educational benefit is no longer constitutionally sufficient. The educational benefits of diversity in their own right are no longer a compelling interest that the constitution will permit as a justification for race-conscious admissions. Put another way, the law that we were following, that universities were following since 1978, has been limited considerably. And we therefore have to pursue the educational benefits of diversity within the confines of the court’s new law.

The second thing we should know is that the court didn't close the door entirely to affirmative action. The court applied the strict scrutiny test to say that these two programs in particular failed the Constitution’s requirements on several different grounds. From now on, universities may consider an applicant’s discussion of how race affected his or her life, through discrimination, inspiration or otherwise, but that consideration may not be done merely by changing application essays. The court found a student’s individual experiences related to race may be considered, but not experiences solely due to membership in a racial group. The court said that nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability and that the particular applicant can contribute to the university. That’s important because we are committed as a university and as a law school to making sure that we follow the law but also that we pursue diversity in a way that is now constitutionally permissible.

A third thing we should note are the specific uses of race that have been prohibited. If race is a consideration, as the court has permitted, there has to be an endpoint to the use of race as a factor, universities may never use race as a stereotype, and race may not be used as a negative factor to harm non-minorities.

Q: The Supreme Court has wrestled with the question of race in college admissions for decades, but most cases have all largely landed in the same place. Why have these two cases been the ones to move the needle?

A: Part of it is the makeup of the court. The majority opinion was written by Chief Justice Roberts, but the majority includes three people who are relatively new to the court—Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett. The challenges to affirmative action have been really frequent. Since the Bakke decision, which was 45 years ago, the doctrine of affirmative action has been challenged over and over again, especially in higher education, and the court has repeatedly affirmed its commitment to educational benefits. This case is different, though, with the court saying the educational benefits that higher education is claiming are not enough.

Q: Nine states have already banned the use of affirmative action for public universities. Have we witnessed an impact on diversity in higher education in those states that might offer a picture of what this ruling means nationally? 

A: California is a good state to point to there. We have data from medical schools that immediately after the state’s legislature passed Proposition 209 in 1996, the numbers of Latino American and Black Americans really plummeted. We also have evidence that by 2019, they have largely recovered those numbers. Medical schools in California adjusted their admissions policies and changed their processes for advising, mentoring and attracting students and thereby recovered those numbers so that by 2019, there were more Black and Latino students in California than there were before Proposition 209.

Q: In the 2003 Grutter v. Bollinger case, Justice Sandra Day O’Connor wrote in the majority opinion that “25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”  How close or far away are we from achieving that, especially considering Thursday’s ruling?

A: I believe the court changed the calculus on this question today. We are no longer able to estimate the need for affirmative action based on years passed, but if employed, affirmative action must be tied to measurable outcomes. The court said judges would have to be able to measure the educational benefits of diversity in order for them to pass strict scrutiny. That means that a university would need data to show both the connection between its admissions policy and the outcomes they impact, and how those outcomes can be measured. Take, for example, national data that describes how graduation rates are uneven by race. A school that wishes to use race-conscious admissions that will pass strict scrutiny would have to show that its policy was affecting graduation rates in a measurable way. Perhaps that school could show that its practices increased the number of people going into an area of law or medical practice that was underserved. We do not yet know for sure what will work under this new law, but I see data as a great way to start the conversation.

Q: Do these rulings restricting race-based affirmative action threaten other diversity-focused programs at colleges and universities? Could it extend to areas outside of academia, such as hiring practices?

A: One thing that characterizes this opinion is that it is painstakingly precise in its interpretation of precedent to the point that the court even spent time looking at the exact number of students that were admitted as African Americans, Hispanic Americans and Asian Americans in 10 classes at Harvard. This is a decision that describes the strict scrutiny requirements of an admissions program in higher education. That's all it does. It would be a mistake to take this precise decision and say that now we can't discuss race anywhere else, because that's not what the court said.