Legal Sidebari

The Supreme Court Considers Affirmative
Action: Arguments in the Cases Against
Harvard and the University of North Carolina
January 6, 2023

On October 31, 2022, the Supreme Court heard arguments in two cases addressing admissions in higher
education: Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for
Fair Admissions, Inc. v. University of North Carolina. In each case, lower courts concluded that the
universities made permissible, limited use of race to promote student body diversity, in line with Supreme
Court precedent holding that institutions of higher education could, in some circumstances, consider race
in admissions without running afoul of the Constitution’s equal protection principles. The same petitioner
asked the Court in each of the two cases to revisit and expressly overrule those previous holdings. In the
alternative, the petitioner asked the Court to hold that the universities violated the constitutional rules
established in existing precedent by allegedly overemphasizing race, disadvantaging Asian-American
applicants, and rejecting viable race-neutral admissions procedures. This Sidebar considers the Court’s
history with racial classifications, the arguments presently before the Court, potential outcomes, and
considerations for Congress.
Precedent for Affirmative Action in Higher Education
In 2003, building on a case decided in 1978, the Supreme Court in Grutter v. Bollinger held that the
Constitution’s equal protection principles allow limited consideration of race in higher education
admissions. In general, equal protection requires that governments avoid distributing benefits or burdens
based on race, unless those classifications meet a high bar. For justification, the government must identify
a compelling government interest and show that its policy is narrowly tailored to pursue that interest. This
test is known as “strict scrutiny.” Judges and commentators regularly observe that government
classifications using race usually fail strict scrutiny and are held unconstitutional. In the cases before the
Court and in the precedent at issue here, the parties do not dispute the use of race. Accordingly, this
Sidebar does not address the legal meaning of race or considerations of whether a given classification
qualifies as a racial one.
Congressional Research Service
https://crsreports.congress.gov
LSB10893
CRS Legal Sidebar
Prepared for Members and
Committees of Congress

---

Congressional Research Service
2
In Grutter, the Court held that seeking student body diversity can be a compelling interest justifying some
use of race in higher-education admissions, at least as a plus factor in a holistic consideration of
applicants. To justify the use of race, however, the university must first establish its interest in diversity
and, second, show its policies take race into account no more than needed.
In considering the University of Michigan Law School’s interest in diversity, the Grutter Court approved
the school’s goals to seek “the educational benefits that flow from a diverse student body” and to enroll a
“critical mass of underrepresented minority students” so that those students felt “encourage[d] ... to
participate in the classroom.”
The Court in Grutter also held that the school’s race-based admissions preference was narrowly tailored,
explaining that it set no numerical target or quota system. Rather, the admissions plan was “flexible
enough to ensure that each applicant is evaluated as an individual.” In a companion case, Gratz v.
Bollinger, in contrast, the Court rejected a state admissions program that “automatically” awarded
admissions points to minority applicants. Also as part of its narrow tailoring analysis in Grutter, the Court
determined that the university adequately considered race-neutral alternatives for reaching its diversity
goals. The Court pointed out that “[n]arrow tailoring does not require exhaustion of every conceivable
race-neutral alternative,” “[n]or does it require a university to choose between maintaining a reputation
for excellence” or diversity. The Court also assumed continued pursuit of race-neutral options and
contemplated that “25 years from now, the use of racial preferences will no longer be necessary to further
the interest approved today.” Some might assume that any compelling government interest in diversity
would have been achieved by that time; essentially, there would no longer be a compelling government
interest. That said, durational requirements, where they come up in other affirmative action programs,
have been considered as part of narrow tailoring. And objections to a program with no end date are
essentially arguments that the remedy is overbroad.
Post-Grutter, the Supreme Court has returned to the issue of affirmative action in higher education and
addressed these standards further, in two cases both named Fisher v. University of Texas. In the first
Fisher, decided in 2013 (Fisher I), the Court required universities to describe concretely the diversity-
related educational goals their policies serve. In Fisher II, decided in 2016, the Court upheld the
University of Texas’s race-conscious admissions policy against the challenger’s arguments that the
university must instead, as a race-neutral alternative, expand its policy of admitting the top 10% of
students from the state’s high schools. The Court stated that the 10% plan did not meet the university’s
diversity goal and would require the university to give up other admissions criteria. All in all, the Court
held that an institution declining to use race-neutral alternatives must show that race-neutral approaches
“would not promote its [compelling] interest ‘about as well and at tolerable administrative expense.’”
While Grutter and the Fisher cases considered constitutional constraints on public institutions, the same
rules apply to private schools (like Harvard) that accept federal funds on condition of abiding by the
antidiscrimination requirements of Title VI of the Civil Rights Act of 1964 (Title VI). Thus far, the Court
has held that Title VI shares the Constitution’s same equal protection guarantees.
Arguments for and Against Overturning Grutter
Students for Fair Admissions (SFFA), petitioner in both of the cases presently before the Court, includes
past and potential university applicants who allege that they were, or may be, denied admission because
Harvard and the University of North Carolina at Chapel Hill (UNC) improperly use race in their highly
selective admissions processes.
Many observers predict that the Court will overturn Grutter. At oral argument, SFFA described the
Court’s existing affirmative action standards as “a glaring exception” to the rule that “[r]acial
classifications are wrong.” SFFA reasoned that whenever race is counted, even as a factor among many,

---

Congressional Research Service
3
“some people are going to be excluded based on race.” By SFFA’s calculation, in the UNC case, the use
of race results in some 700 applications per application cycle where “race made the difference.”
The parties and Justices also considered at oral argument whether Grutter was ever meant to be long-
lasting. Justices repeatedly asked about Grutter’s 25-year timeline. Justice Kavanaugh suggested that a
25-year sunset on affirmative action was part of the Court’s holding. SFFA proposed that if affirmative
action had not achieved diversity after 25 years, it might be “declar[ed] ... a failure” and eliminated. SFFA
also characterized the timeline as “aspirational” rather than a concrete deadline. But, in SFFA’s view, the
universities have not reduced their use of race over time or given assurances that they would. The
Solicitor General also argued that the time limit showed an expectation but was not “inflexible.”
Originalist Interpretations of the Fourteenth Amendment
SFFA contends that Grutter is not in keeping with the original intent of the Fourteenth Amendment,
which, in SFFA’s view, bars racial distinctions and “contains no exceptions.” The Amendment, SFFA
argues, aimed to “constitutionalize the Civil Rights Act of 1866” that banned various forms of racial
discrimination. The Reconstruction Congress and contemporary state laws, SFFA says, set up remedial
programs for freed slaves but did not make the sort of racial classifications Grutter permits. UNC,
Harvard, and the Solicitor General, in contrast, argue that the Fourteenth Amendment’s drafters did not
anticipate absolute race neutrality. In the government’s view, many state and federal laws took race into
account at the time of the Fourteenth Amendment, aiming “to bring African American citizens to a point
of equality in our society.”
The Court’s Precedent on Race-Based Classifications
The parties also disagree on the correct interpretation of the Court’s precedent regarding racial
classifications. SFFA contends that the Court’s seminal decision in Brown v. Board of Education (1954),
holding public school segregation unconstitutional, requires a “color-blind” approach. In answer, UNC
states that race-based decisions that bring students together are distinguishable from those that segregate.
UNC argues that the Court in Brown endorsed the value of “a diverse student body ‘to engage in
discussions and exchange views with other students.’” Harvard similarly distinguishes Brown, observing
that the Court struck down state systems of “[s]eparating school children ‘solely because of their race.’”
This practice, the Brown Court stated, generated “‘feeling[s] of inferiority’ and undermined ‘the
motivation of a child to learn.’” Harvard argues that its affirmative action program, using race as one
factor to promote diversity, is not comparable.
Looking beyond Brown to the Court’s other jurisprudence evaluating racial classifications, each party
contends that its approach better reflects the Court’s precedent. UNC states that a requirement for
“colorblindness” “defies [the] Court’s longstanding jurisprudence” allowing those race-based actions that
pass strict scrutiny. UNC describes Grutter’s strict scrutiny standard as “familiar,” used in many
constitutional decisions. The “color blind interpretation,” the Solicitor General argues, “takes aim ... at the
Court’s entire structure here of applying strict scrutiny” to racial classifications. SFFA, in contrast, argues
that even if race-based practices can sometimes be justified, accepting diversity as a compelling interest is
out of step with how the Court has applied strict scrutiny to other important goals. SFFA notes in its brief
that the Court has invalidated race-based actions justified as providing “role models” for minority
students, prioritizing a child’s best interest in a custody decision, and remedying general, societal
discrimination. The assumption that racial diversity will enhance viewpoint diversity, SFFA states, relies
on blanket assumptions about minority students’ opinions and experiences that the Court has refused to
countenance when confronted with other proffered government interests.

---

Congressional Research Service
4
The Search for a Workable Standard
The parties dispute whether the Court can develop a standard that schools and courts can follow as well.
SFFA argues that Grutter is unworkable. The facts in the Harvard and UNC cases, it admonishes, show
the precedent “does not meaningfully limit universities’ use of race.” Neither university can identify when
it has achieved the educational benefits of diversity or the critical mass of minority students it seeks,
SFFA contends. The district court, SFFA argues, “conflated the educational benefits of diversity ... with
raw representation on campus.” Justice Gorsuch expressed a similar concern at oral argument, asking
UNC’s counsel how the schools could distinguish “diversity” from “a quota” given UNC’s focus on
minority acceptance rates. Justice Alito also asked how a court could tell whether a diversity goal had
been reached, and Justice Barrett asked counsel about racial preferences’ “logical end point.”
UNC concedes that diversity is “a qualitative standard that is difficult to measure.” Counsel suggested at
oral argument that evaluation would consider “numbers” and an assessment of whether minority students
felt isolated. The Solicitor General argues that measuring minority graduation rates, race-related incidents
on campus, and surveys of student experiences could help determine whether a school had achieved its
diversity goals, but numbers, if they showed “extreme disparities,” might also be relevant.
Oral argument also suggested difficulties with circumscribing the use of race if Grutter were overturned.
Chief Justice Roberts repeatedly asked counsel how a bar on the use of race would affect consideration of
students’ life experiences. Chief Justice Roberts and Justice Barrett asked if students could discuss
experiences with racial discrimination or race-based cultural identity in admissions essays. Justice Barrett
asked whether restricting universities’ consideration of racial experiences described in application essays
could amount to impermissible viewpoint discrimination. SFFA’s counsel agreed that schools would be
allowed to consider “experiences [applicants] have had because of their race” and race could play a role
as a “context for” a student’s “experience.” Justice Kavanaugh expressed that SFFA’s position “will put a
lot of pressure going forward ... on what qualifies as race-neutral.” Overall, in arguing that a ban on
consideration of race is workable, SFFA notes that many selective state universities already forgo race-
based preferences in admissions. Further, private universities may keep race-based admissions, SFFA
claims, provided they forgo federal funds to avoid Title VI’s strictures.
The Schools’ Admissions Plans Under Grutter
SFFA also argues that, even if Grutter stands, the schools’ admissions plans violate Grutter’s
requirements. In the lower courts, the parties strongly contested how much each school used race and
whether evidence showed intentional discrimination against Asian Americans. The Supreme Court does
not ordinarily engage in fact-finding, and it is unusual for the Court to revisit factual disputes, although it
may remand to lower courts for additional fact-finding. Nevertheless, many of the Justices’ questions at
oral argument focused on the facts. SFFA contends (despite the lower courts’ contrary findings) that
Harvard discriminates against Asian-American applicants. SFFA focuses on the fact that African-
American applicants receive higher “personal” ratings (allegedly measuring leadership, kindness, and
likeability) than members of other races, and Asian-American applicants receive somewhat lower ratings.
At oral argument, Justice Alito remarked that “there has to be something wrong with this personal score.”
Justice Gorsuch asked Harvard’s counsel about any use of “Asian quotas,” which counsel denied, noting
that the slightly lower rankings did not translate into unfavorable admissions outcomes.
SFFA also maintains that the schools’ use of race is not narrowly tailored because they could employ race-
neutral means to improve diversity. Harvard could, for example, eliminate preferences given to athletes
and children of faculty, alumni, and donors. UNC, too, could expand race-neutral criteria, SFFA
maintains, including increasing its preference for socioeconomically disadvantaged students and granting
automatic admission to top-ranked students at each North Carolina high school. These proposals raise
some of the same difficulties for measuring success as the schools’ race-conscious plans. Justice

---

Congressional Research Service
5
Kavanaugh repeatedly asked SFFA’s counsel at oral argument how to assess when a race-neutral
alternative is adequate or effective. Counsel suggested that both enrollment numbers and studies of
campus cross-racial understanding might be relevant.
UNC counters that SFFA’s proposed schemes, as a factual matter, could not be implemented. According
to UNC, some proposed alternative plans, for example, assume that it could recruit all of the state’s top
high school students. SFFA’s proposed alternatives would also, UNC argues, force UNC to abandon the
individualized assessments it uses to ensure diversity not only along racial lines but also in other qualities
the university values. At argument, UNC’s counsel conceded that a university might have to give up
certain preferences to improve diversity, but it need not makes changes that have “a material negative
impact on the academic environment.”
Harvard states that the lower court rightly found it has no effective race-neutral alternatives. Eliminating
advantages for alumni, donor, and faculty children, the lower court found, would “not meaningfully
improve diversity.” At argument, Harvard’s counsel referred to this finding when Justices repeatedly
asked about justifying such preferences. In its brief, Harvard joins with UNC in arguing that narrow
tailoring does not require universities to adopt race-neutral admissions procedures that would
“‘significant[ly]’ diminish the strength of” their classes. Harvard argues that SFFA’s proposed plans
would do just that by excluding many applicants with the highest academic rankings. Also, Harvard
claims, it does not need to accept a proposed admission plan that would significantly reduce African-
American enrollment—perhaps by 32%. Thus, Harvard asserts, SFFA’s proposed race-neutral alternative
plans are not effective or workable alternatives, and they do not prove that Harvard’s current procedures
fail narrow tailoring requirements.
Potential Outcomes
The Court could resolve the issues presented in different ways. It could overturn Grutter and related
cases, broadly affecting higher education admissions and perhaps race-conscious preferences in other
contexts. It could also rule in a narrow way, tied to the facts presented, which may have limited impact
beyond the two universities involved in the case. Many commentators surmise that the court will overturn
Grutter and hold that enrolling a diverse student body is not a compelling government interest supporting
race-based college and university admissions decisions. In doing so, the Court might conclude, building
on Grutter’s reference to a 25-year limitation, that seeking racial diversity is no longer a compelling
government interest, given social and demographic changes in the intervening years. Eliminating diversity
as a justification would not necessarily preclude all use of race in higher education admissions. Under
other precedent, equal protection allows race-conscious policies for another compelling government
interest: remedying educational institutions’ past racial discrimination. In this case, the schools have not
said they are remedying past discrimination; UNC disclaimed that motive.
The Court may take another approach, continuing to allow universities to use race-conscious policies to
further diversity while putting pressure on the second element of strict scrutiny: narrow tailoring. The
Court could adopt the standard proposed by SFFA, which argues that narrow tailoring should require
universities to employ available race-neutral alternatives unless they “would cause a dramatic sacrifice in
academic quality or the educational benefits of overall student-body diversity.” This is a different standard
than Fisher II’s requirement that schools choose race-neutral methods that work “about as well and at
tolerable administrative expense.”
The Court could rule against the universities without departing from Grutter and Fisher II if it chose to
revisit the lower courts’ factual findings. For example, disagreeing with the lower courts, the Court could
hold that the schools’ plans ignore race-neutral alternatives required to meet the precedents’ narrow
tailoring requirements. It could decide that the schools’ plans consider race to a greater extent than
constitutionally permitted under current law—Fisher II described the consideration of race it approved in

---

Congressional Research Service
6
that case as “a factor of a factor of a factor.” It could conclude that affirmative action policies with no
end-date or other provisions for termination are not narrowly tailored.
The Court could also factually distinguish these universities’ policies from other race-conscious
admissions practices based on their impact on Asian-American applicants. The Court has stated, in other
contexts, that narrow tailoring should consider “the impact ... on the rights of third parties.” At oral
argument, Justices repeatedly asked the universities, particularly Harvard, about whether their admissions
processes disadvantaged Asian-American applicants. The Court could decide that these particular
admissions policies unduly burdened Asian-American applicants and so are not narrowly tailored, or it
could conclude that the universities engaged in intentional discrimination.
If the Court revisits its previous conclusion that Title VI and equal protection standards are the same, it
could find a Title VI violation without deciding the constitutional issue. Neither party has sought this
result.
The Court may also remand one or both cases; the Solicitor General suggested this course should the
Court find that Harvard had, contrary to the district court’s findings, engaged in “racial balancing” to
maintain consistent, year-to-year racial demographics.
Finally, the Court could uphold one or both of the challenged policies, concluding, as did the lower
courts, that they comply with existing precedent or with any new standard the Court announces.
Considerations for Congress
Legislation cannot change the Supreme Court’s interpretation of the Equal Protection Clause. Congress
can, however, amend Title VI so that it is no longer interpreted congruently with that provision.
Congress could expressly encourage or require diversity-enhancing measures under Title VI. Congress
could not require unconstitutional action, such as mandating racial quotas. As such, if the Court holds that
using race in admissions is always unconstitutional, Congress could not mandate affirmative action.
Nevertheless, it could call for other measures, such as reporting requirements for minority recruiting,
admission, and retention; development of plans to enhance minority recruiting or retention; or
appointment of diversity coordinators, Title VI coordinators, or advisory committees. Congress could
consider encouraging or requiring colleges to employ non-racial admissions criteria that may enhance
diversity, although it is not clear how the Court might rule on such measures in the future.
Alternatively, Congress could prohibit recipients of federal funds from using voluntary race-conscious
measures at all, even if the Court in the Harvard and UNC cases allows some such measures. For
example, Congress could require that funding recipients adopt policies barring race-conscious admissions
procedures like those at Harvard and UNC.
Congress could amend Title VI to clarify whether it prohibits or allows admission procedures that have an
unjustified adverse effect on racial minorities, known as disparate impact discrimination. A provision
addressing disparate impact liability—either its availability or foreclosure under Title VI—would resolve
a significant ongoing debate on the issue. It would also be one way to clarify whether Congress does in
fact intend for Title VI to be read coextensively with the Equal Protection Clause, which the Supreme
Court has interpreted to prohibit only disparate treatment, not disparate impact discrimination.

---

Congressional Research Service
7
Author Information

April J. Anderson

Legislative Attorney




Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff
to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of
information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.
CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United
States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However,
as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the
permission of the copyright holder if you wish to copy or otherwise use copyrighted material.

LSB10893 · VERSION 1 · NEW

---