Race-Conscious Admissions and Equal Protection in Higher Education

Race-Conscious Admissions and Equal Protection in Higher Education

Race-Conscious Admissions and Equal
April 19, 2024
Protection in Higher Education
April J. Anderson
In its 2023 decision in Students for Fair Admissions v. Harvard, the Supreme Court upended
Legislative Attorney
decades-old precedent allowing some use of race in higher education admissions, sometimes

known as “affirmative action” programs. These programs involve what the Court at one time
called the “benign” use of racial classifications—voluntary measures not required by court order

or settlement and designed not to remedy past discrimination but to help racial minorities
contribute diverse viewpoints within the educational environment. Over the years, use of race as a factor in admissions
decisions became common in many highly selective colleges and universities, both public and private.
When federal courts have analyzed the constitutionality of “affirmative action” in higher education, they have done so under
the Fourteenth Amendment’s guarantee of “equal protection.” Although the use of racial classifications under this provision is
prohibited in most circumstances, race-conscious admissions policies in higher education had for many years proved a
notable exception. Prior to the Students for Fair Admissions case, the Supreme Court had repeatedly upheld universities’ use
of race as one of many factors considered in the admissions process, concluding that such policies could pass a particularly
searching form of review known as strict scrutiny. The Court long grappled with this seeming tension—between the
strictness of its scrutiny and its approval of race-conscious admissions policies—beginning with its landmark 1978 decision
in Regents of the University of California v. Bakke. In that case, the Court concluded that diversity in higher education
admissions—that is, gathering a student body with varied experiences and backgrounds—provided a compelling government
interest that justified some use of race, provided it was narrowly tailored to achieve educational goals. Bakke and later cases
rejected quota systems and other rigid preferences, calling for use of race only as a plus factor in a holistic applicant
assessment. Students for Fair Admissions effectively ended this endeavor. The Court considered two schools’ race-conscious
admissions programs and held that their diversity goals were too amorphous to be subject to meaningful judicial review. It
also concluded that the admissions programs disadvantaged some students because of their race and held that the schools
wrongly assumed that a student of a minority race necessarily brought a minority viewpoint to the academic community. In
addition, the Court held that the admissions preferences were too broad, particularly because they included no sunset
provisions or other end points to define when they could be phased out. While it barred the universities’ use of mere racial
identity as an admissions advantage, the Court did point out that school officials could consider applicants’ individual
histories—including any experiences with race or culture that applicants chose to describe in their applications.
Though constitutional equal protection constraints generally concern public universities and their obligations under the
Fourteenth Amendment, federal statutory law also plays a role in ensuring equal protection in higher education. To that end,
Title VI of the Civil Rights Act of 1964 prohibits recipients of federal funding—including private colleges and universities—
from, at a minimum, discriminating against students and applicants in a manner that would violate the Equal Protection
Clause. Federal agencies, including the Departments of Justice and Education, investigate and administratively enforce
institutions’ compliance with Title VI. Accordingly, these agencies can play a role in enforcing the restrictions Students for Fair
Admissions has placed on race-conscious action. In addition, the agencies may apply Title VI to address discriminatory policies that
hinder minority student enrollment. While Congress may not alter the Supreme Court’s equal protection jurisprudence, it may
consider actions affecting Title VI, including amendment and oversight.

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Contents
Equal Protection and Racial Classifications .................................................................................... 2
Strict Scrutiny and Supreme Court Affirmative Action Jurisprudence ........................................... 2
Diversity as a Compelling Government Interest ....................................................................... 3
Narrow Tailoring ....................................................................................................................... 5
The Students for Fair Admissions Decision .................................................................................... 7
Considering Measurable Objectives, Race as a Disadvantage, and Time Limits ..................... 7
Reconciling Students for Fair Admissions and Grutter ............................................................ 9
Title VI and Higher Education ....................................................................................................... 11
Agency Interpretation and Enforcement of Title VI ............................................................... 12
Congress and Title VI .............................................................................................................. 15

Contacts
Author Information ........................................................................................................................ 16

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Race-Conscious Admissions and Equal Protection in Higher Education

“Affirmative action,” while not a legal term, is sometimes used to describe a decisionmaker’s
voluntary1 consideration of race as a way of increasing the participation or representation of racial
minorities. “Affirmative action” has been among the most contentious subjects in constitutional
law.2 In the context of higher education, the Supreme Court has repeatedly addressed one type of
policy in particular: the use of race as a factor in admissions decisions, a practice employed by
some highly selective public and private colleges and universities.3 For several decades, the Court
approved the legality of such policies under the Fourteenth Amendment’s guarantee of “equal
protection,” relying on a single theory: that the educational benefits that flow from a diverse
student body uniquely justify some consideration of race when deciding how to assemble an
incoming class.
To rely on that diversity rationale, however, the Court required universities to explain in concrete
and precise terms what their diversity-related goals were and why they had chosen those goals in
particular.4 A university had to show that its admissions policy achieved its diversity-related goals
as precisely as possible, while ultimately “treat[ing] each applicant as an individual.”5
In its 2023 decision in Students for Fair Admissions v. Harvard, the Court effectively ended its
approval of affirmative action in higher education admissions, holding that the practices at
Harvard and the University of North Carolina (UNC) were unlawful. The Court concluded that
UNC’s practices violated the guarantee of equal protection in the Fourteenth Amendment to the
Constitution, which generally prohibits governmental racial discrimination. Additionally, while
the Fourteenth Amendment’s Equal Protection Clause applies directly only to state-run
educational institutions, its nondiscrimination requirements apply equally to private colleges and
universities that receive federal funds under Title VI of the Civil Rights Act of 1964 (Title VI),
which prohibits recipients of federal dollars from discriminating on the basis of race.6 In Students
for Fair Admissions, the Court concluded that Harvard’s affirmative action program violated this
statutory provision for the same reasons that UNC’s violated the Constitution.

1 As used in this report, a “voluntary” race-conscious measure is one adopted by an institution apart from any legal
obligation to do so. 28 C.F.R. § 42.104(b)(6)(ii) (2024) (U.S. Department of Justice [DOJ] regulation outlining a
voluntary form of “affirmative action” permissible under Title VI of the Civil Rights Act of 1964). The term
“affirmative action” has also been used to describe court-ordered remedial measures designed to address past, state-
sponsored segregation. See, e.g., Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 22, 28 (1971) (stating that
the remedy for state-enforced separation of the races is “to dismantle dual school systems” and approvingly discussing
“affirmative action[s]” proper for achieving that end); cf. 28 C.F.R. § 42.104(b)(6)(i) (U.S. DOJ regulation providing,
under Title VI of the Civil Rights Act of 1964, that “[i]n administering a program regarding which the recipient has
previously discriminated against persons on the ground of race, color, or national origin, the recipient must take
affirmative action to overcome the effects of prior discrimination”). This report addresses only voluntary affirmative
action. For discussion of remedial measures, see CRS Report R45481, “Affirmative Action” and Equal Protection in
Higher Education, by Christine J. Back (2019).
2 ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 764 (5th ed. 2015) (“No topic in
constitutional law is more controversial than affirmative action.”).
3 Legal definitions of race, ethnicity, or national origin have not been at issue in this context. Accordingly, this report
does not address the issue.
4 Fisher v. Univ. of Tex. (Fisher II), 579 U.S. 365, 381–82 (2016). The Court had previously remanded a challenge to
the university’s affirmative action program. Fisher v. Univ. of Tex. (Fisher I), 570 U.S. 297 (2013), aff’d, 579 U.S. 365
(2016).
5 Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 318 (1978) (Powell, J., announcing judgment of the Court) (plurality
opinion).
6 42 U.S.C. § 2000d (barring racial discrimination “under any program or activity receiving Federal financial
assistance”); see also Alexander v. Sandoval, 532 U.S. 275, 279–81 (2001) (“tak[ing] as given” that Title VI
“proscribe[s] only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment”)
(second alteration in original) (quoting Bakke, 438 U.S. at 287).
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This report describes the evolution of the Supreme Court’s voluntary affirmative action
jurisprudence and the Students for Fair Admissions decision’s implications.7 The report concludes
by discussing the role that Title VI plays in ensuring equal protection in higher education,
including several avenues for congressional action under the Act.
Equal Protection and Racial Classifications
The Fourteenth Amendment to the Constitution provides that no state shall “deny to any person
within its jurisdiction the equal protection of the laws.”8 The constitutional guarantee of equal
protection broadly prohibits the government from employing “arbitrary classification[s].”9 The use
of racial classifications in particular has long been of special concern for the federal courts. This
“heightened judicial solicitude”10 for racial categorizing has roots nearly as old as the Fourteenth
Amendment itself. As the Supreme Court explained in an early decision under the Amendment,
the “spirit and meaning” of the Equal Protection Clause was “that the law in the States shall be
the same for the black as for the white; that all persons, whether colored or white, shall stand
equal before the laws of the States, and, in regard to the colored race, . . . that no discrimination
shall be made against them by law because of their color.”11 In the decades since, the Court has
only made clearer that it regards the government’s use of racial classifications as “inherently
suspect” and therefore subject to more demanding scrutiny than other classifications, which are
typically reviewed only for basic rationality.12
There has been significant disagreement, however, over just how rigidly the courts should
scrutinize a racial classification, especially when the point of the classification is to benefit racial
minorities, as in affirmative action.
Strict Scrutiny and Supreme Court Affirmative
Action Jurisprudence
The Court first took up the issue of race-based admissions in Regents of the University of
California v. Bakke, challenging an affirmative action admissions program at the University of
California at Davis Medical School. The school set aside 16 of 100 places in its entering class for

7 Portions of this report are drawn from an earlier CRS report, see Back, CRS Report R45481, supra note 1.
8 U.S. CONST. amend. XIV, § 1. Equal protection obligations also apply to the federal government. See Adarand
Constructors, Inc. v. Peńa, 515 U.S. 200, 217 (1995) (observing that under Supreme Court case law “the equal
protection obligations imposed by the Fifth and the Fourteenth Amendments [are] indistinguishable,” so that “the
standards for federal and state racial classifications [are] the same”).
9 See Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 597 (2008) (referring to the Court’s “traditional view of the core
concern of the Equal Protection Clause as a shield against arbitrary classifications”). See also Willowbrook v. Olech,
528 U.S. 562, 564 (2000) (“Our cases have recognized successful equal protection claims brought by a ‘class of one,’
where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there
is no rational basis for the difference in treatment.”).
10 Graham v. Richardson, 403 U.S. 365, 372 (1971) (observing that “heightened judicial solicitude is appropriate” for
classifications affecting “a ‘discrete and insular minority’”) (citing United States v. Carolene Prods. Co., 304 U.S. 144,
152–53 n.4 (1938)).
11 Strauder v. West Virginia, 100 U.S. 303, 307 (1879), abrogated by, Taylor v. Louisiana, 419 U.S. 522 (1975).
12 Adarand, 515 U.S. at 218 (quoting Regents of Univ. Cal. v. Bakke, 438 U.S. 265, 291 (1978)); Graham, 403 U.S. at
371–72 (observing that “the Court’s decisions have established that classifications based on . . . race are inherently
suspect and subject to close judicial scrutiny”).
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“disadvantaged” students, considering only minority students for these slots.13 A White applicant
denied admission filed suit challenging the set-aside under the Equal Protection Clause as well as
Title VI,14 which prohibits institutional recipients of federal funds—like the Medical School—
from discriminating on the basis of race.15
A deeply divided Court produced no majority opinion. Justice Stevens, writing for four Justices,
concluded that the program violated Title VI, sidestepping the constitutional question.16 Another
four Justices would have reached the equal protection challenge.17 In doing so, they would have
required the Medical School to point to “important governmental objectives” that justified its
admissions policy’s use of “remedial” racial classifications, along with evidence that the policy’s
use was “substantially related to” achieving those important objectives.18 Under that standard—a
form of intermediate scrutiny19—these Justices would have upheld the policy.20
Justice Powell, announcing the Court’s judgment but writing for himself, insisted that all “racial
and ethnic distinctions” drawn by the government must be regarded as “inherently suspect” and
subjected to “the most exacting judicial examination.”21 What that meant in Bakke, according to
Justice Powell, was that the Medical School would need to prove that its use of the “special
admissions” carve-out was “precisely tailored to serve a compelling governmental interest”—the
standard of review now known simply as strict scrutiny.22 Because, in his view, the school could
come forward with no such proof, Justice Powell concluded that its affirmative action policy
could not survive the Court’s scrutiny under either the Fourteenth Amendment or the overlapping
standards of Title VI.23
Diversity as a Compelling Government Interest
Bakke first formulated the diversity rationale as a justification for race-conscious admissions. In
his Bakke opinion, Justice Powell took up the issue of a compelling government interest and
rejected most of the university’s arguments for other affirmative action justifications. First, he
rejected a racial balancing argument—an alleged interest in having “some specified percentage”
of certain racial or ethnic groups in a student body. Then, Justice Powell rejected the school’s
claims that it was both “remedying . . . the effects of ‘societal discrimination’” and endeavoring
to train minority doctors for “the delivery of health-care services to communities currently

13 Bakke, 438 U.S. at 274–75 (describing the operation of the “special admissions program”). Unless otherwise
indicated, citations of Bakke are of Justice Powell’s opinion announcing the Court’s judgment.
14 The Act provides that “[n]o person in the United States shall, on the ground of race, color, or national origin, be
excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or
activity receiving Federal financial assistance.” 42 U.S.C. § 2000d.
15 Bakke, 438 U.S. at 276–79.
16 This group included Chief Justice Burger along with Justices Rehnquist, Stevens, and Stewart. See id. at 418
(Stevens, J., concurring in part and dissenting in part).
17 This group included Justices Brennan, Blackmun, Marshall, and White. See id. at 324.
18 Id. at 359 (Brennan, J., concurring in part and dissenting in part).
19 See CHEMERINSKY, supra note 2, at 765 (characterizing this level of review as intermediate).
20 Bakke, 438 U.S. at 325–26 (Brennan, J., concurring in part and dissenting in part).
21 Id. at 291; see Emily Bazelon, Why Is Affirmative Action in Peril? One Man’s Decision, NY TIMES MAG. (Mar. 4,
2023), https://www.nytimes.com/2023/02/15/magazine/affirmative-action-supreme-court.html.
22 Bakke, 438 U.S. at 299.
23 Id. Justice Powell agreed with the four dissenting Justices that “Title VI must be held to proscribe only those racial
classifications that would violate the Equal Protection Clause or the Fifth Amendment.” Id. at 287; see also id. at 352
(Brennan, J., concurring in part and dissenting in part) (explaining the dissenters’ view that “Title VI’s definition of
racial discrimination is absolutely coextensive with the Constitution’s”).
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underserved.” None of these interests, Justice Powell concluded, provided a reason substantial
enough to justify turning to race-conscious measures.24 In the years since, the Court has not
further opined on these potential justifications.
Justice Powell was clear, however, about one interest he considered compelling enough to satisfy
strict scrutiny: “a diverse student body.”25 This interest included the university’s “right to select
those students who will contribute the most to the ‘robust exchange of ideas.’”26 Justice Powell
provided little detail as to how this interest might, in practice, be used to justify race-based action.
As he saw it, however, the interest had limits: pursuing diversity would not allow a university to
resort to racial quotas, for example.27
In 2003, the Court clarified Bakke’s application in Grutter v. Bollinger,28 a case challenging the
University of Michigan Law School’s admissions program. In Grutter, the Court endorsed Justice
Powell’s diversity rationale as a compelling government interest.29 It approved the Law School’s
goal of admitting a class with what it called a “critical mass of underrepresented minority
students”30 to ensure that those students were “encourage[d] . . . to participate in the classroom”
and did not “feel isolated.”31
In subsequent years, the Court further refined its application of strict scrutiny to affirmative
action programs, including its conception of student-body diversity as a compelling interest.32 In
2016, the Court in Fisher v. University of Texas reaffirmed that, “because racial characteristics so
seldom provide a relevant basis for disparate treatment,” “[r]ace may not be considered [by a
university] unless [its] admissions process can withstand strict scrutiny.”33 The Fisher Court set
two new benchmarks for reviewing a university’s asserted interest in resorting to race as a factor
in its admissions policy. First, the university had to articulate “concrete and precise goals” that its
race-conscious policy served—goals “sufficiently measurable” under “judicial scrutiny.”34
Second, the university had to provide a “‘reasoned, principled explanation’ for its decision to
pursue those goals.”35 In the Court’s view in Fisher, the University of Texas’s use of race in its
admissions decisions met both benchmarks.36

24 Id. at 306–12.
25 Id. at 312–13. See Grutter v. Bollinger, 539 U.S. 306, 325 (2003) (endorsing “Justice Powell’s view that student body
diversity is a compelling state interest that can justify the use of race in university admissions”). No other Justice in
Bakke joined Justice Powell’s opinion or his explanation of the diversity rationale. Indeed, the term “diversity” does not
even appear in any other Justice’s opinion.
26 Bakke, 438 U.S. at 312–13.
27 Id. at 307 (“If [the Medical School’s] purpose is to assure within its student body some specified percentage of a
particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected not as
insubstantial but as facially invalid.”).
28 Grutter v. Bollinger, 539 U.S. 306 (2003).
29 Id. at 325.
30 Id. at 319.
31 Id. at 318.
32 Adarand Constructors, Inc. v. Peńa, 515 U.S. 200, 224 (1995); City of Richmond v. J.A. Croson, Co., 488 U.S. 469,
499 (1989) (plurality opinion).
33 Fisher II, 579 U.S. 365, 376 (2016) (first and second alteration in original) (first quoting City of Richmond, 488 U.S.
at 505, and then quoting Fisher I, 570 U.S. 297, 309 (2013).
34 Id. at 366–67.
35 Id. at 382 (quoting Fisher I, 570 U.S. at 310).
36 Id. at 382–84.
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In the view of some critics, this Supreme Court jurisprudence stood out as an anomaly.37 In no
other context had diversity passed muster as a compelling government interest. More broadly,
racial distinctions had passed strict scrutiny only when they remedied past discrimination or (at
least in the limited circumstance of race-based prison violence) were needed to ensure prison
security.38 A school’s mere invocation of a diversity goal, however, was not enough to overcome
strict scrutiny.39 Bakke and subsequent cases also considered ways in which race-conscious
admissions must avoid overbroad use of race.
Narrow Tailoring
After establishing a compelling government interest, an affirmative action proponent must show
that its race-based program is narrowly tailored to achieve that interest—namely, that it is neither
overbroad nor underinclusive.40 The 2003 companion cases of Grutter v. Bollinger and Gratz v.
Bollinger offer clear examples: the Supreme Court upheld the University of Michigan Law
School’s policy in Grutter while striking down the university’s undergraduate admissions policy
in Gratz.41 The Court compared the Michigan policies to a plan Justice Powell had described
favorably in Bakke: Harvard’s affirmative action plan.42 Justice O’Connor explained for the Court
in Grutter that “the Law School engage[d] in a highly individualized, holistic review of each
applicant’s file”; did not award “mechanical, predetermined diversity ‘bonuses’ based on race or
ethnicity”; and, “[l]ike the Harvard plan,” accorded each applicant the same sort of flexible
consideration that Justice Powell had called for in Bakke.43 That policy contrasted, in the Court’s
view, with the university’s undergraduate admissions policy in Gratz. Under the undergraduate
policy, admissions officers automatically awarded “20 points, or one-fifth of the points needed to
guarantee admission, to every single ‘underrepresented minority’ applicant solely because of
race.”44 The Court held the Grutter plan constitutional because of its holistic, flexible
consideration of race and rejected the Gratz plan because of its rigidity.
With their contrasting results, Gratz and Grutter outlined several basic criteria by which courts
could assess a university’s race-conscious admissions policy. Those criteria, as the U.S. Court of
Appeals for the Ninth Circuit later described them, could be characterized as “five hallmarks of a
narrowly tailored affirmative action plan.”45 First, a plan under the Grutter and Gratz rulings

37 See, e.g., Brett M. Kavanaugh, Keynote Address: Two Challenges for the Judge as Umpire: Statutory Ambiguity and
Constitutional Exceptions, 92 NOTRE DAME L. REV. 1907, 1917 (2017) (“The Court has recognized a basic equal
protection right not to be treated differently by the government on account of your race. But there is a longstanding
exception for affirmative action, at least in the realm of higher education.”).
38 Johnson v. California, 543 U.S. 499, 512–13 (2005).
39 Fisher II, 579 U.S. 365, 381 (2016).
40 City of Richmond v. J.A. Croson, Co., 488 U.S. 469, 506 (1989); see also Sanchitha Jayaram & April J. Anderson,
“Narrow Tailoring” and Race-Conscious Government Action, CRS PODCAST, at 01:03 (Nov. 16, 2023),
https://www.crs.gov/audio/detail/WPD00074?source=search.
41 Grutter v. Bollinger, 539 U.S. 306, 343–44 (2003); Gratz v. Bollinger, 539 U.S. 244, 275–76 (2003).
42 See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 316 (1978) (discussing the plan then in place at Harvard, as
outlined by amicus); Grutter, 539 U.S. at 335; Gratz, 539 U.S. at 272.
43 Grutter, 539 U.S. at 337.
44 Gratz, 539 U.S. at 270.
45 Smith v. Univ. of Wash., 392 F.3d 367, 373 (9th Cir. 2004); but see Peter N. Salib & Guha Krishnamurthi, The
Goose and the Gander: How Conservative Precedents Will Save Campus Affirmative Action, 102 TEX. L. REV. 123,
125 (2023) (describing the Court’s “mysterious—arguably incoherent—restrictions on how those preferences could be
structured”). Narrow tailoring requirements are not unique to education; other forms of government race-based action
are similarly evaluated. CRS Report R47471, The Constitution and Race-Conscious Government Action: Narrow
Tailoring Requirements, by April J. Anderson (2023).
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needed to avoid quotas. As Justice O’Connor explained in Grutter, “a ‘quota’ is a program in
which a certain fixed number or proportion of opportunities are ‘reserved exclusively for certain
minority groups’” consequently “insulat[ing] the individual [applicant] from comparison with all
other candidates for the available seats.”46 A quota system is generally not flexible enough to be
narrowly tailored.47
Second, an admissions program under Grutter and Gratz had to involve a “highly individualized,
holistic review of each applicant’s file, giving serious consideration to all the ways an applicant
might contribute to a diverse educational environment.”48 This review allowed “the use of race as
one of many ‘plus factors’ in an admissions program.”49
Third, a school needed to give serious, good-faith consideration to race-neutral alternatives for
reaching its diversity goals. After reviewing race-neutral options that the University of Michigan
Law School had rejected as inappropriate, the Grutter 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 fulfilling a commitment
to provide educational opportunities to members of all racial groups.”50 Rather, as the Court later
elaborated in Fisher, “A university . . . bears the burden of proving a ‘nonracial approach’ would
not promote its interest in the educational benefits of diversity ‘about as well and at tolerable
administrative expense’” as a race-conscious approach.51
Fourth, a school had to avoid harm to third parties, where possible. In Grutter, Justice O’Connor
stated that “a race-conscious admissions program” must “not unduly harm members of any racial
group.”52 It should avoid harm to “innocent persons competing” for the same benefit.53
Fifth, narrow tailoring required a time limit. This requirement, Justice O’Connor explained for the
Court in Grutter, reflected a consideration that “however compelling their goals,” racial
classifications “are potentially so dangerous that they may be employed no more broadly than the
interest demands.”54 Doctrinally, this requirement meant there could be no “permanent
justification” for race-conscious admissions policies in higher education; sooner or later they had
to end, as the university conceded in its briefing.55 Practically, this “logical end point” could come
in one of several ways. It could take the form of an explicit “durational requirement,” such as a
sunset provision.56 Alternatively, it could arrive as a result of “periodic reviews to determine
whether racial preferences are still necessary to achieve student body diversity.”57 However a
university chooses to pursue that end, it has, as the Fisher Court explained, an “ongoing
obligation to engage in constant deliberation and continued reflection regarding its admissions

46 Grutter, 539 U.S. at 334–35 (first quoting City of Richmond v. J.A. Croson Co., 488 U.S. 469, 496 (1989), and then
quoting Bakke, 438 U.S. at 317).
47 Fisher I, 570 U.S. 297, 309 (2013).
48 Grutter, 539 U.S. at 337.
49 Fisher I, 570 U.S. at 305.
50 Grutter, 539 U.S. at 339.
51 Fisher II, 579 U.S. 365, 377 (2016) (quoting Fisher I, 570 U.S. at 312).
52 Grutter, 539 U.S. at 341.
53 Id. (quoting Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 308 (1978)).
54 Id. at 342.
55 Id.
56 Id.
57 Id.; see also Smith v. Univ. of Wash., 392 F.3d 367, 375 (9th Cir. 2004) (indicating that, under Grutter, “race-
conscious admissions programs must be limited in time, such as by sunset provisions or periodic reviews to determine
whether the preferences remain necessary”).
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policies” and the role race plays in them, or whether it should continue to play one at all.58 The
Grutter Court, writing in 2003, assumed that the school would continue to explore race-neutral
options and suggested that “25 years from now, the use of racial preferences will no longer be
necessary.”59
The Students for Fair Admissions Decision
In the 2023 case Students for Fair Admissions v. Harvard, the Supreme Court upended its
jurisprudence regarding the constitutionality of affirmative action programs in higher education
admissions.60 The case involved separate challenges to Harvard’s and UNC’s affirmative action
programs, and the Court issued one majority opinion concluding that the schools’ stated interest
in diversity did not support race-based admissions.61 Chief Justice Roberts, joined by Justices
Thomas, Alito, Gorsuch, Kavanaugh, and Barrett, concluded that the two schools’ affirmative
action admissions policies, in seeking student-body diversity, lacked “sufficiently focused and
measurable objectives warranting the use of race,” among other things.62 The ruling constrains
race-based affirmative action in higher education admissions at private and public colleges and
universities.
The Court in Students for Fair Admissions did not expressly overturn Grutter, but it observed that
Grutter “expressed marked discomfort with the use of race in college admissions” and
characterized racial classifications as “dangerous.”63 As a result, the Grutter Court considered
permissible race-based government action “subject to continuing oversight.”64 Citing Grutter’s
requirement that race-based decisions must “end” at “some point,” the Court held that both
Harvard’s and UNC’s admissions policies violated equal protection.65
Considering Measurable Objectives, Race as a Disadvantage, and
Time Limits
In Students for Fair Admissions, the Supreme Court concluded that the schools’ admissions
programs failed strict scrutiny for three primary reasons: the schools’ plans (1) lacked measurable
objectives, (2) had no end date or other goal to mark a stopping point, and (3) used race to
disadvantage and to stereotype students.66
To begin with, the Court stated that it could not “license separating students on the basis of race
without an exceedingly persuasive justification that is measurable and concrete enough to permit
judicial review.”67 The schools argued that they aimed to promote diverse viewpoints, prepare
productive citizens and leaders, and foster cross-racial understanding.68 The Supreme Court
determined, however, that courts cannot measure these “elusive” and “standardless,” if “worthy,”

58 Fisher II, 579 U.S. 365, 388 (2016).
59 Grutter, 539 U.S. at 343.
60 Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 230 (2023).
61 Id. at 190.
62 Id. at 230.
63 Id. at 212 (quoting Grutter, 539 U.S. at 342).
64 Id.
65 Id.
66 Id. at 230.
67 Id. at 217.
68 Id. at 214–15.
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goals.69 The Court found Harvard’s and UNC’s diversity goals too “amorphous” and not
“sufficiently measurable” to allow meaningful judicial review.70 In the Court’s view, even if
courts could quantify these objectives, they could not declare them accomplished with sufficient
certainty to know when affirmative action should end.71 In contrast, the majority observed that
other compelling interests the Court has recognized as justifying race-based action can be reliably
assessed: courts can evaluate whether the potential for racial violence so threatens prison security
as to justify inmate segregation and can gauge when race-based remedies have alleviated the
effects of past segregation.72
The Court also found the schools’ race-conscious admissions programs were not narrowly
tailored. In addressing the schools’ specific racial classifications, the Court also concluded that
“imprecise” and “arbitrary” groupings of various ethnicities and races revealed a problem with
the affirmative action plans’ structure,73 as the distinctions lacked “meaningful connection
between the means they employ and the goals they pursue.”74 Lumping all Asians together was, in
the Court’s view, “plainly overbroad,” while the seeming exclusion of Middle Easterners was
“underinclusive.”75 A school might disregard the lack of South Asian students provided it
admitted enough East Asian students, for instance. “[T]he use of these opaque racial categories
undermines, instead of promotes, respondents’ goals,” the Court concluded.76 This “mismatch
between the means respondents employ and the goals they seek,” the Court said, made it
“especially hard to understand how courts are supposed to scrutinize the admissions programs
that respondents use.”77
The Court also emphasized Grutter’s requirement that race-based admissions programs be
temporary. “This requirement was critical,” the majority stated, “and Grutter emphasized it
repeatedly.”78 A time limit was “the reason the Court was willing to dispense temporarily with the
Constitution’s unambiguous guarantee of equal protection,” in the Court’s view,79 yet with respect
to Harvard’s and UNC’s admissions plans, the Court pointed out that some twenty years after
Grutter, the schools admitted that they had no timeline in mind for ending consideration of race.80
Apart from avoiding any specific timeline, the Court concluded, the institutions offered no
demographic “benchmark” or goal that could, if achieved, mark the end of the schools’ need for
affirmative action.81
The Court in Students for Fair Admissions did not explicitly tie its concerns about an end date
with a narrow tailoring assessment. In the Court’s view, the lack of a benchmark or other end
point helped illustrate that “the interests [the schools] view as compelling cannot be subjected to

69 Id. at 215.
70 Id. at 214 (quoting Fisher II, 579 U.S. at 381).
71 Id. at 213.
72 Id. at 215.
73 Id. at 216.
74 Id. at 215.
75 Id. at 216.
76 Id. at 217.
77 Id. See David E. Bernstein, Why Does the Supreme Court Refer to Preferences for Hispanics/Latinos as “Racial
Preferences”? VOLOKH CONSPIRACY (Jan. 24, 2022, 5:27 PM), https://reason.com/volokh/2022/01/24/why-does-the-
supreme-court-refer-to-preferences-for-hispanics-latinos-as-racial-preferences.
78 Students for Fair Admissions, 600 U.S. at 212.
79 Id.
80 Id. at 224.
81 Id. at 221.
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meaningful judicial review,” because a court could not “know when they have been reached, and
when the perilous remedy of racial preferences may cease.”82 The parties’ use of affirmative
action until racial “stereotypes have broken down” promised no identifiable end point, in the
Court’s view.83 The Court also condemned what it termed the plans’ “numerical commitment” to
diversity, evidenced in consistent rates of minority admissions year to year.84 The results, the
Court said, resembled the “racial balancing” forbidden by precedent and portended that
consideration of race would continue.85
The Court found that the schools’ use of race violated other requirements of Grutter as well. For
one thing, it disadvantaged some students on the basis of race.86 While Grutter and Bakke allowed
race to be used as a plus factor, but not a determining factor, for specific applicants, the Court in
the Students for Fair Admissions case determined that the schools’ admissions programs reduced
Asian and White admission rates.87 The Court observed that since admissions are “zero-sum,”
providing a benefit “to some applicants but not to others necessarily advantages the former group
at the expense of the latter.”88
The Court also held that the schools’ admissions programs violated equal protection principles
barring racial stereotyping by establishing an “inherent benefit” in “race for race’s sake.”89
Quoting Grutter, the Court said that “universities may not operate their admissions programs on
the ‘belief that minority students always (or even consistently) express some characteristic
minority viewpoint on any issue.’”90 In the Court’s view, the schools’ admissions programs based
on fostering diversity evinced such a belief, assuming students “of a particular race, because of
their race, think alike.”91
Reconciling Students for Fair Admissions and Grutter
Although the Supreme Court in Students for Fair Admissions invalidated Harvard’s and UNC’s
affirmative action admissions programs, it did not explicitly overrule Grutter.92 The Court held
that the schools’ programs were unconstitutional because they did not use measurable objectives,
they used race to disadvantage some students, they relied on stereotyping, and they lacked
“meaningful end points.”93 The Court viewed these characteristics as contravening the boundaries

82 Id. at 214.
83 Id. at 224.
84 Id. at 222.
85 Id. at 223 (quoting Fisher I, 570 U.S. 297, 311 (2013)).
86 Students for Fair Admissions, 600 U.S. at 213.
87 Id. at 209, 218 (quoting Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 317 (1978)).
88 Id. at 218–19, 272.
89 Id. at 220.
90 Id. at 219 (quoting Grutter v. Bollinger, 539 U.S. 306, 333 (2003)).
91 Id. at 220–21 (quoting Miller v. Johnson, 515 U.S. 900, 911–12 (1995)).
92 See Salib & Krishnamurthi, supra note 45, at 124 (“Although the Court stopped short of explicitly overruling the
cases that first authorized [affirmative action], scholars, concurring and dissenting Justices, and even the majority
opinion itself all strongly suggest that the holding functionally accomplishes exactly that.”); Richard H. Fallon, Jr.,
Selective Originalism and Judicial Role Morality, 102 TEX. L. REV. 221, 225 (2023) (observing that the Court
“effectively held that race-based admissions preferences violate the Equal Protection Clause”); Robert Barnes, Supreme
Court Rejects Race-Based Affirmative Action in College Admissions, WASH. POST. (June 29, 2023, 8:24 PM),
https://www.washingtonpost.com/politics/2023/06/29/affirmative-action-supreme-court-ruling/ (stating that the ruling
“rolls back decades of precedent”).
93 Students for Fair Admissions, 600 U.S. at 230.
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of permissible race-based decisionmaking in the Court’s equal protection jurisprudence.94 In so
holding, the Court based its ruling, at least in part, on a conclusion that the schools’ policies did
not satisfy Grutter.
Although Grutter has not been overruled, its continuing relevance is unclear. Students for Fair
Admissions does not give clear guidelines for any race-conscious admissions program that would
meet constitutional standards going forward. It is not even clear that the program at issue in
Grutter could satisfy the analysis in Students for Fair Admissions. For one thing, the Court in
Students for Fair Admissions highlighted Grutter’s requirement that race-based action be
temporary, observing that the Court did not “bless[] such programs indefinitely.”95 The Court also
emphasized Grutter’s statement that “25 years from now, the use of racial preferences will no
longer be necessary.”96 One interpretation of Students for Fair Admissions could be that the Court
determined that Grutter had, under its own terms, expired. Justice Thomas would read more into
the majority opinion; in a concurrence, he concluded that “Grutter is, for all intents and purposes,
overruled.”97
On top of leaving Grutter’s status in question, the Court did not explain how Students for Fair
Admissions applies to other institutions’ plans. The Court did not limit its holding to Harvard’s
and UNC’s policies and pronounced that “universities may not” use “the regime we hold unlawful
today.”98
The Court expressly avoided addressing one specific educational context, however: military
service academies. Explaining that the government had argued that race-based admissions
programs further compelling government interests at the nation’s military academies, the Court in
Students for Fair Admissions stated that these institutions were not parties and that its opinion did
“not address the issue, in light of the potentially distinct interests that military academies may
present.”99
Further, while the Supreme Court struck down Harvard’s and UNC’s race-conscious admissions
preferences, it did not bar all mention of race in higher education admissions. For one thing, the
Court acknowledged that nothing barred schools from “considering an applicant’s discussion of
how race affected his or her life, be it through discrimination, inspiration, or otherwise,” in
written submissions such as admissions essays.100 The majority cautioned, however, that schools
could “not simply establish through application essays or other means the regime we hold
unlawful today.” Rather, consideration would have to be based on each applicant’s “experiences
as an individual—not on the basis of race.”101

94 Id.
95 Id. at 227.
96 Grutter v. Bollinger, 539 U.S. 306, 343 (2003).
97 Students for Fair Admissions, 600 U.S. at 287 (Thomas, J., concurring).
98 Id. at 230 (majority opinion).
99 Id. at 213 n.4. At least one service academy faces a lawsuit challenging its admission practices. See Students for Fair
Admissions v. U.S. Mil. Acad., No. 23-CV-08262, 2024 WL 36026, at *5 (S.D.N.Y. Jan. 3), appeal filed, No. 24-40
(2d Cir. Jan. 4), denying injunction pending appeal, 144 S. Ct. 716 (U.S. Feb. 2, 2024) (Sotomayor, J., in chambers).
100 Students for Fair Admissions, 600 U.S. at 230. One observer quoting this sentence stated that “[l]itigation is sure to
continue as the sides fight about the limits of Chief Justice Roberts’s life preserver line.” Kevin R. Eberle, A Review of
Significant Supreme Court Decisions of the 2022-23 Term, S.C. LAW., Sept. 2023, at 48, 50.
101 Students for Fair Admissions, 600 U.S. at 231. Some have argued that, as a practical matter, schools may still be
able to assemble a racially diverse student body by relying on student-admission essays and characteristics correlated
with race. See Salib & Krishnamurthi, supra note 45, at 152.
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Additionally, other Supreme Court precedent recognizes that remedying educational institutions’
past discrimination is a compelling government interest distinct from the interest in fostering
student-body diversity that the Court appeared to reject in Students for Fair Admissions.102
Accordingly, an institution could still take action (including, perhaps, race-conscious action) to
remedy its own past racial discrimination.103 Remedying general, societal discrimination,
however, is not an adequate compelling government interest.104 In the Students for Fair
Admissions case, the schools did not claim to be remedying past discrimination. Schools in the
Court’s previous rulings on voluntary affirmative action programs in higher education
admissions—in Bakke, Grutter, Gratz, and Fisher—also did not raise such claims. Accordingly, it
is unclear whether institutions could succeed on a remedial theory.
Title VI and Higher Education
Many of the Supreme Court’s affirmative action cases, including Students for Fair Admissions,
have involved, in addition to constitutional equal protection claims, claims brought under Title VI
of the Civil Rights Act of 1964.105 That provision prohibits discrimination on the basis of race,
color, or national origin in federally funded programs, including both public educational
institutions and private institutions accepting federal funds.106 The Court has read Title VI’s
protections to overlap with the Equal Protection Clause,107 and accordingly its ruling in the
Students for Fair Admissions case will require changes in both public and private college and
university affirmative action programs that rely on race. Nationwide, only a minority of
institutions—mostly highly selective institutions—use such programs. Some states have banned
affirmative action in their institutions.108
As schools that consider race in their admissions programs evaluate and amend their programs in
response to Students for Fair Admissions, Title VI may play a larger role when it comes to issues
of race and education. The statute is an important means of combating intentional discrimination,
and it is sometimes used to challenge facially neutral policies that end up reducing minority
enrollment.109 Some may see this aspect of Title VI enforcement as a way to increase enrollment
of underrepresented minorities.110

102 See Students for Fair Admissions, 600 U.S. at 215; United States v. Fordice, 505 U.S. 717, 729 (1992); Back, CRS
Report R45481, supra note 1.
103 See Back, CRS Report R45481, supra note 1, at 43.
104 Students for Fair Admissions, 600 U.S. at 226.
105 42 U.S.C. § 2000d.
106 Id. (“No person in the United States shall, on the ground of race, color, or national origin, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving
Federal financial assistance.”) See also id. § 2000d-4a (defining program or activity).
107 Alexander v. Sandoval, 532 U.S. 275, 279–81 (2001) (“tak[ing] as given” that Title VI “proscribe[s] only those
racial classifications that would violate the Equal Protection Clause or the Fifth Amendment”) (second alteration in
original) (quoting Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 287 (1978) (Powell, J., announcing judgment of the
Court)).
108 See Eryn Hadley, Did the Sky Really Fall? Ten Years After California’s Proposition 209, 20 BYU J. PUB. L. 103,
127–28 (2005); Symposium, From Proposition 209 to Proposal 2: Examining the Effects of Anti-Affirmative Action
Voter Initiatives, 13 MICH. J. RACE & L. 461, 474 (2008).
109 Michael D. Shear & Anemona Hartocollis, Education Dept. Opens Civil Rights Inquiry into Harvard’s Legacy
Admissions, N.Y. TIMES (July 25, 2023), https://www.nytimes.com/2023/07/25/us/politics/harvard-admissions-civil-
rights-inquiry.html.
110 Michael G. Perez, Fair and Facially Neutral Higher Educational Admissions Through Disparate Impact Analysis, 9
MICH. J. RACE & L. 467, 481 (2004).
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Agency Interpretation and Enforcement of Title VI
To enforce the protections of Title VI, the Act grants all federal funding agencies the authority to
issue implementing regulations111 and the power to enforce the regulations they issue.112 In
practice, much of the interpretive authority falls to the U.S. Department of Justice (DOJ)113 and,
for educational programs, the U.S. Department of Education (ED).114 ED has issued its own set of
rules to govern the federal education dollars it disburses each year, reaching many colleges and
universities.115 ED has the authority to enforce those rules against noncompliant recipients,
including through an investigation that may, upon a finding of noncompliance, result in the
termination, suspension, or refusal to grant federal funds.116 Both DOJ and ED have established
their own processes for receiving and investigating complaints of suspected Title VI violations.117
Aside from its investigations of complaints, ED is also required by regulation to conduct
“compliance reviews” “from time to time” to assess whether “the practices of recipients . . . are
complying” with Title VI.118
When ED finds a school in violation of Title VI or its implementing regulations, the Department
may seek to cut off federal funding through an “administrative fund termination proceeding[],” as
it has in at least some cases.119 Since the passage of the Civil Rights Restoration Act of 1987,120
the courts have applied Title VI liability broadly, holding that a violation can affect several

111 42 U.S.C. § 2000d-1. Executive Order 12,250 delegated functions that the statute had originally vested in the
President to the Attorney General relating to the approval of rules, regulations, and orders of executive branch agencies
that extend federal financial assistance. See Exec. Order No. 12,250, 28 C.F.R. pt. 41, app. A to pt. 41 (Nov. 2, 1980).
112 See 42 U.S.C. § 2000d-1.
113 The Attorney General, pursuant to executive order, has been given broad authority to coordinate Title VI
implementation and enforcement across executive branch agencies. See Exec. Order No. 12,250 § 1-201(a), 28 C.F.R.
pt. 41, app. A to pt. 41 (Nov. 2, 1980). DOJ has accordingly produced a comprehensive manual of Title VI guidance in
addition to its own set of regulations under the Act. See CIV. RIGHTS. DIV., U.S. DEP’T OF JUST., TITLE VI LEGAL
MANUAL, https://www.justice.gov/crt/book/file/1364106/dl?inline (last visited Apr. 5, 2024); 28 C.F.R. §§ 42.101–
42.112 (DOJ regulations implementing Title VI).
114 See CRS In Focus IF12455, Race Discrimination at School: Title VI and the Department of Education’s Office for
Civil Rights, by Jared P. Cole (2023).
115 See Education and Title VI, OFF. FOR CIV. RIGHTS, U.S. DEP’T OF EDUC.,
https://www2.ed.gov/about/offices/list/ocr/docs/hq43e4.html (last visited Apr. 5, 2024) (identifying ED funding
recipients).
116 42 U.S.C. § 2000d-1 (stating that compliance “may be effected (1) by the termination of or refusal to grant or to
continue assistance under such program or activity to any recipient as to whom there has been an express finding on the
record, after opportunity for hearing, of a failure to comply with such requirement, but such termination or refusal shall
be limited to the particular political entity, or part thereof, or other recipient as to whom such a finding has been made
and, shall be limited in its effect to the particular program, or part thereof, in which such noncompliance has been so
found, or (2) by any other means authorized by law”).
117 See Filing a Complaint, CIV. RIGHTS DIV., U.S. DEP’T OF JUST., https://www.justice.gov/crt/filing-complaint (last
visited Apr. 5, 2024) (describing methods of reporting complaints to DOJ); Education and Title VI, supra note 115
(explaining ED’s enforcement of Title VI through its Office for Civil Rights and describing the complaint procedure
for reporting acts of discrimination based on “race, color, or national origin”).
118 34 C.F.R. § 100.7(a) (2024).
119 See, e.g., Coal. for Equity & Excellence in Md. Higher Educ. v. Md. Higher Educ. Comm’n, 977 F. Supp. 2d 507,
516–17 (D. Md. 2013) (citation omitted) (describing ED’s earlier efforts to terminate funding for Maryland’s higher
education system); see also Education and Title VI, supra note 115). ED does not appear to have readily available data
on how often it has initiated fund termination proceedings or in how many cases such proceedings have resulted in the
termination of funds.
120 Civil Rights Restoration Act of 1987, Pub. L. No. 100-259 § 2, 102 Stat. 28 (1988) (finding that “legislative action
[wa]s necessary to restore the prior consistent and long-standing executive branch interpretation and broad, institution-
wide application of those laws as previously administered”). See also 42 U.S.C. § 2000d–4a.
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funding streams.121 This interpretation means that a Title VI infringement in one program at a
college or university could jeopardize funding for the institution as a whole.122
Withdrawing funds may be the ultimate means of enforcing Title VI, but it is not the exclusive
means.123 DOJ, for its part, has also sought to achieve compliance through the federal courts,
intervening in some private suits alleging Title VI violations124 and otherwise representing
executive branch agencies, such as ED, in lawsuits seeking enforcement of Title VI.125 DOJ has
also taken positions in cases challenging affirmative action admissions policies, including
Students for Fair Admissions.126
ED has ventured into affirmative action issues as well, opening Title VI investigations into the
admissions decisions at several prominent private universities. Before the Court decided Students
for Fair Admissions, ED investigated charges that universities discriminated against White and
Asian applicants.127 After the Court’s decision, ED opened an investigation into charges that
Harvard’s admissions preference for family of alumni and donors violates Title VI.128
Following the Students for Fair Admissions decision, ED and DOJ also released joint guidance
explaining how higher education institutions can pursue diversity goals without violating the
requirements of the Court’s ruling and Title VI.129 The guidance indicates that institutions may

121 See, e.g., Sharer v. Oregon, 581 F.3d 1176, 1178 (9th Cir. 2009) (“To honor Congress’ intent, we ‘interpret[]
‘program or activity’ broadly.’”) (quoting Haybarger v. Lawrence Cnty. Adult Prob. & Parole, 551 F.3d 193, 200 (3d
Cir. 2008)); see also TITLE VI LEGAL MANUAL, supra note 113, at 22–24, 27–28.
122 See Ayers v. Allain, 893 F.2d 732, 754 (5th Cir. 1990) (observing that the Civil Rights Restoration Act of 1987
made it “possible to establish institution-wide discrimination under Title VI when there is federal financing that is
program specific”).
123 See Nat’l Black Police Ass’n v. Velde, 712 F.2d 569, 575 (D.C. Cir. 1983) (explaining that “fund termination was
envisioned as the primary means of enforcement under Title VI,” but that “Title VI clearly tolerates other enforcement
schemes” including the “referral of cases to the Attorney General, who may bring an action against the recipient”).
124 See generally Alexander v. Sandoval, 532 U.S. 275, 279–80 (2001) (discussing the ability of private individuals to
sue under Section 601 of Title VI).
125 See Educational Opportunities Cases, CIV. RIGHTS DIV., U.S. DEP’T OF JUST.,
https://www.justice.gov/crt/educational-opportunities-cases (last updated Apr. 4, 2023).
126 See Statement of Interest in Opposition to Defendant’s Motion for Summary Judgment, Students for Fair
Admissions, Inc. v. Harvard Corp., 397 F. Supp. 3d 126 (D. Mass 2019), (No. 14-cv-14176), ECF No. 497; Brief for
the United States as Amicus Curiae Supporting Appellant and Urging Reversal, Students for Fair Admissions, Inc. v.
Harvard Corp., No. 19-2005 (1st Cir. Mar. 18, 2020), 2020 WL 1329780; Brief for the United States as Amicus Curiae
Supporting Respondent, Students for Fair Admissions, Inc. v. Univ. of N.C., 600 U.S. 181 (2022) (No. 21-707), 2022
WL 3130793; Brief for the United States as Amicus Curiae Supporting Respondent, Students for Fair Admissions, Inc.
v. President & Fellows of Harvard Coll., 600 U.S. 181 (2022) (No. 20-1199), 2022 WL 3108833.
127 See, e.g., Benjamin Wermund, Trump Administration Probes Complaint That Yale Discriminates Against Asian-
Americans, POLITICO (Sept. 26, 2018, 1:50 PM), https://www.politico.com/story/2018/09/26/trump-administration-
probes-yale-discrimination-complaint-843581; Rachel Treisman, Justice Department Drops Race Discrimination
Lawsuit Against Yale University, NPR (Feb. 3, 2021), https://www.npr.org/2021/02/03/963666724/justice-department-
drops-race-discrimination-lawsuit-against-yale-
university#:~:text=The%20U.S.%20Department%20of%20Justice,in%20its%20undergraduate%20admissions%20proc
ess; William S. Flanagan & Michael E. Xie, Justice Department Actively Investigating Harvard Admissions, HARVARD
CRIMSON (Oct. 11, 2017), https://www.thecrimson.com/article/2017/10/11/foia-confirms-doj-investigation/.
128 Michael D. Shear & Anemona Hartocollis, Education Dept. Opens Civil Rights Inquiry into Harvard’s Legacy
Admissions, N.Y. TIMES (July 25, 2023), https://www.nytimes.com/2023/07/25/us/politics/harvard-admissions-civil-
rights-inquiry.html.
129 U.S. DEP’T OF EDUC. AND DEP’T OF JUST., QUESTIONS AND ANSWERS REGARDING THE SUPREME COURT’S DECISION IN
STUDENTS FOR FAIR ADMISSIONS, INC. V. HARVARD COLLEGE AND UNIVERSITY OF NORTH CAROLINA 3 (Aug. 14, 2023)
[hereinafter SFFA QUESTIONS AND ANSWERS], https://www.justice.gov/d9/2023-08/post-
sffa_resource_faq_final_508.pdf; See also Dear Colleague Letter from Kristen Clarke, Assistant Att’y Gen., U.S. Dep’t
(continued...)
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still consider “any quality or characteristic of a student that bears on the institution’s admission
decision, such as courage, motivation, or determination,” even if that student’s application “ties
that characteristic to their lived experience with race.”130 Accordingly, the guidance suggests that
institutions review admissions procedures and “ensure they identify and reward those attributes
that they most value, such as hard work, achievement, intellectual curiosity, potential, and
determination.”131 Additionally, the Students for Fair Admissions decision concerned only
admissions, the guidance points out, and institutions may “redoubl[e] efforts to recruit and retain
talented students from underserved communities, including those with large numbers of students
of color.”132 Recruitment, retention, or efforts to “grow[] the talent pool” in certain communities
do not require the now-forbidden admission preferences.133 Schools need not “ignore race” in
outreach and recruiting activities, the guidance advises.134 Schools might “work proactively to
identify potential barriers posed by existing” admissions policies, such as those based on legacy
status or donor affiliation, that “may reflect and amplify inequality, disadvantage, or bias.”135
Some agency interpretations of Title VI could require that schools consider whether their policies
disadvantage minority applicants, even inadvertently. While the Students for Fair Admissions
case holds that intentional, race-based admissions policies like Harvard’s and UNC’s violate Title
VI, regulations may require schools to avoid policies with an unintentional racial impact. A Title
VI federal funding recipient’s actions might violate Title VI regulations if they have a
disproportionate racial effect. ED and other agencies have long adopted Title VI “disparate
impact” regulations that bar funding recipients from unjustified actions that have discriminatory
effects based on a protected characteristic.136 Regulations do not give private plaintiffs permission
to sue. In Alexander v. Sandoval, the Supreme Court ruled that while private plaintiffs may sue in
federal court to enforce parts of Title VI, they may do so only in claims of intentional
discrimination that violates the Equal Protection Clause.137 Because the Supreme Court has not
ruled that agencies are prohibited from enforcing disparate impact regulations through the
administrative process, ED can enforce its Title VI disparate impact regulations in education
programs it funds.138

of Just. & Catherine Lhamon, Assistant Sec’y for Civil Rights, U.S. Dep’t of Educ. (Aug. 14, 2023) [hereinafter SFFA
Dear Colleague Letter], https://www2.ed.gov/about/offices/list/ocr/letters/colleague-
20230814.pdf?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=; Fact Sheet,
The White House, President Biden Announces Actions to Promote Educational Opportunity and Diversity in Colleges
and Universities (June 29, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/06/29/fact-
sheet-president-biden-announces-actions-to-promote-educational-opportunity-and-diversity-in-colleges-and-
universities/; Jillian Berman, Biden Administration to Colleges: Here’s How You Can Maintain Diversity Without
Affirmative Action, MARKETWATCH (Aug. 14, 2023), https://www.marketwatch.com/story/biden-administration-to-
colleges-heres-how-you-can-maintain-diversity-at-colleges-without-affirmative-action-1760d36b.
130 SFFA QUESTIONS AND ANSWERS, supra note 129, at 3.
131 SFFA Dear Colleague Letter, supra note 129, at 2.
132 SFFA Dear Colleague Letter, supra note 129, at 2; SFFA QUESTIONS AND ANSWERS, supra note 129, at 4.
133 SFFA Dear Colleague Letter, supra note 129, at 2.
134 SFFA QUESTIONS AND ANSWERS, supra note 129, at 4.
135 SFFA Dear Colleague Letter, supra note 129, at 2.
136 34 C.F.R. § 100.3(b); see also 42 U.S.C. § 2000(k) (outlining the burden of proof in disparate impact cases under
Title VII of the Civil Rights Act of 1964).
137 Alexander v. Sandoval, 532 U.S. 275, 279–80 (2001); CRS Report R45665, Civil Rights at School: Agency
Enforcement of Title VI of the Civil Rights Act of 1964, coordinated by Jared P. Cole (2019).
138 See Cole, CRS Report R45665, supra note 137; Cole, CRS In Focus IF12455, supra note 114. Some have
speculated that the Court may invalidate disparate impact rules. Aziz Huq, Ending Affirmative Action May Be Just the
Beginning, POLITICO (June 29, 2023, 11:50 AM), https://www.politico.com/news/magazine/2023/06/29/affirmative-
action-ending-00104189.
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Congress and Title VI
When it comes to school admissions and race, Congress cannot change the Supreme Court’s
equal protection jurisprudence governing race-based admissions but still has a significant say
over Title VI and its enforcement. Congress can conduct hearings and oversight. Congress could
also amend Title VI139 so that it is no longer interpreted congruently with equal protection.140 It
could make the statute either (1) more restrictive of race-conscious actions than the Court’s
current equal protection jurisprudence or (2) expressly permissive of race-conscious measures
(such as race-conscious outreach and recruiting) that the Court has upheld or has thus far not
addressed. Congress may wish to keep in mind that Title VI has a broader reach than does the
Students for Fair Admissions decision. Not only does the statute cover higher education beyond
admissions, it reaches educational programs across age groups and applies to federally funded
programs outside education. Because the Supreme Court had recognized achieving diversity as a
compelling government interest only in higher education admissions, the Students for Fair
Admissions decision abrogates diversity-based affirmative action only in that context. It does not
change the law in primary or secondary education or, for that matter, outside of education; in
those cases, diversity-based affirmative action had never been approved to begin with.141
If seeking to make Title VI more restrictive, Congress could prohibit recipients of federal funds
from using voluntary race-conscious measures at all—including in matters such as outreach and
recruiting. On the other hand, if Congress sought to make Title VI more permissive, it could
expressly encourage or require certain diversity-enhancing measures. Congress could require or
encourage schools to develop plans to enhance minority recruiting or retention or to appoint
diversity coordinators, Title VI coordinators, or advisory committees, for instance.142 Congress
could also bar specific policies that, in its estimation, disadvantage certain groups.143
In addition, Congress could expressly address other avenues for enforcing Title VI’s
antidiscrimination mandate. This enforcement could include incorporating a private right of
action to bring suit under Title VI, which now has only an implied right with no statutorily
defined remedies.144 Conversely, Congress could foreclose a private right of action, leaving
enforcement solely in the hands of agencies. Congress could also amend Title VI to provide for

139 42 U.S.C. § 2000d.
140 In a concurrence, Justice Gorsuch opined that Title VI is more restrictive than the Equal Protection Clause and
would not allow race-based distinctions even if they pass strict scrutiny. Students for Fair Admissions, 600 U.S. at 181,
288 (2023) (Gorsuch, J., concurring).
141 Even though Students for Fair Admissions is not controlling outside of higher education admissions, courts have
cited it in striking other forms of race-based action. For example, a district court in Tennessee cited the decision’s
emphasis on an end date as justification for enjoining certain federal contracting preferences. Ultima Servs. Corp. v.
USDA, No. 20-CV-00041, 2023 WL 4633481, at *15 (E.D. Tenn. July 19, 2023). A district court in Texas quoted the
decision in holding that the Minority Business Development Agency may not limit its services to minority business
owners. Nuziard v. Minority Bus. Dev. Agency, No. 23-CV-00278, 2024 WL 965299, at *36 (N.D. Tex. Mar. 5, 2024).
142 See Aatish Bhatia & Emily Badger, Can You Create a Diverse College Class Without Affirmative Action?, N.Y.
TIMES (Mar. 9, 2024), https://www.nytimes.com/interactive/2024/03/09/upshot/affirmative-action-alternatives.html
(suggesting schools may enhance racial diversity by “building relationships with high school counselors, traveling to
college fairs, and perhaps developing dual-enrollment courses that introduce high school students to college work”).
143 See Lindsay Wise & Jennifer Calfas, Capitol Hill Targets Legacy Preferences for College Admissions, WALL ST. J.,
(Nov. 7, 2023, 5:00 AM), https://www.wsj.com/us-news/education/capitol-hill-targets-legacy-preferences-for-college-
admissions-f827125f.
144 See, e.g., Barnes v. Gorman, 536 U.S. 181, 185 (2002) (“Although Title VI does not mention a private right of
action, our prior decisions have found an implied right of action.”). See also id. at 187–90 (observing that “Title VI
mentions no remedies—indeed, it fails to mention even a private right of action” and applying contract doctrine to
conclude that remedies under Title VI include compensatory damages and injunctive relief, but not punitive damages).
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Race-Conscious Admissions and Equal Protection in Higher Education

disparate impact liability—that is, a Title VI violation based on a funding recipient’s use of
certain policies or practices that a litigant shows disproportionately and negatively impact
members of a protected class. Such liability already exists under Title VII of the Civil Rights Act
of 1964, covering employment discrimination.145 A provision addressing disparate impact liability
would resolve a significant and ongoing debate on the issue.146 Such an addition could also be one
way of clarifying whether, as the Court has held in its affirmative action jurisprudence, Congress
intends for Title VI to be read coextensively with the Equal Protection Clause.147 Congress could
also make changes that do not affect Title VI’s enforcement directly; it could require funding
recipients to collect and report data on minority recruiting, retention, admissions, or other criteria.

Author Information

April J. Anderson

Legislative Attorney

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145 42 U.S.C. § 2000e-2(k) (outlining the burden of proof in disparate impact cases under Title VII of the Civil Rights
Act of 1964).
146 During the Obama Administration, for example, ED’s Office for Civil Rights issued a series of guidance documents
premised on a disparate impact theory under Title VI to evaluate whether school districts were inappropriately
disciplining minority students. The Trump Administration proposed rescinding that guidance, however, arguing in a
report that the guidance’s disparate impact theory rested on a “dubious” reading of Title VI, “at best.” See U.S. DEP’T
OF EDUC. ET AL., FINAL REPORT OF THE FEDERAL COMMISSION ON SCHOOL SAFETY 67–72 (2018),
https://www2.ed.gov/documents/school-safety/school-safety-report.pdf (discussing the earlier disparate impact
guidance and the Commission’s reasons for urging their withdrawal). The Biden administration again employed
disparate impact theories in enforcement. Naaz Modan, Ed Dept Revives Systemic Racial Discrimination Reviews of
School Districts, K-12 DIVE (May 1, 2023), https://www.k12dive.com/news/Biden-Cardona-revive-disparate-impact-
OCR-Department-of-Education/648543/.
147 Because the Court has understood equal protection to forbid only acts of intentional discrimination, and not those
solely with a “racially disproportionate impact,” Washington v. Davis, 426 U.S. 229, 239 (1976), a statutory disparate
impact standard would necessarily broaden Title VI’s protections beyond that constitutional minimum.
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