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The Supreme Court’s Watershed Harvard/UNC Affirmative Action Decision

June 29, 2023


Today, the Supreme Court issued a watershed decision in Students for Fair Admissions, Inc. v. University of North Carolina et al. and Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, holding that Harvard College (“Harvard”) and the University of North Carolina’s (“UNC”) use of race as a factor in their admissions programs violates the Equal Protection Clause. Though the decision does not explicitly overturn Grutter v. Bollinger and Gratz v. Bollinger, the precedent that has set the standard for the use of race in university admissions for two decades, today’s decision applies that standard in a manner that will significantly constrain schools’ ability to consider an applicant’s race when making admissions decisions.

Under Grutter and Gratz, schools could take race into account as part of a holistic, individualized assessment of each candidate, consistent with the Equal Protection Clause and Title VI, which prohibits discrimination based on race by programs that receive federal financial assistance. In Grutter and Gratz, the Supreme Court held that the use of race in this manner survives strict scrutiny because it is a narrowly tailored means of advancing the schools’ compelling interest in maintaining a diverse student body.

Today’s decision is a drastic departure from the application of strict scrutiny in Grutter and Gratz. The Court held that Harvard and UNC failed to demonstrate that their consideration of race furthered any “compelling interest” susceptible to “meaningful judicial review” or to “articulate a meaningful connection between the means they employ and the goals they pursue.” The Court also held that Harvard and UNC’s admissions programs impermissibly used “an individual’s race … against him in the admissions process” and relied “on the belief that minority students always (or even consistently) express some characteristic minority viewpoint.” Finally, the Court held that Harvard and UNC’s programs were constitutionally infirm because they “lack a logical end point.” In short, according to the Court, Harvard and UNC’s programs “cannot be reconciled with the guarantees of the Equal Protection Clause” because they “lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.” 

Justice Sotomayor (joined by Justices Jackson and Kagan) and Justice Jackson (joined by Justices Sotomayor and Kagan) each issued dissenting opinions. Among other things, Justice Sotomayor’s opinion predicts that the “consequences of [the Court’s] decision will be destructive” beyond the higher education context. Citing an amicus brief that O’Melveny filed on behalf of Major American Business Enterprises, Justice Sotomayor argues that race-conscious college admissions contributes to the diversity of the workforce, which “improves business performance, better serves a diverse consumer marketplace, and strengthens the overall American economy.”     

Though focused on the Constitution, this decision may have implications for corporate affirmative-action programs and other diversity efforts under Title VII, which prohibits employers from discriminating based on race. The Supreme Court has historically applied a different standard than the Grutter/Gratz framework when reviewing the legality of programs intended to promote diversity in the employment context under Title VII. Nevertheless, today’s sweeping decision is likely to fuel challenges to private employers’ affirmative action programs and other diversity, equity, and inclusion efforts.

O’Melveny has deep experience in counseling and litigation surrounding diversity, equity, and inclusion programs in the university and private contexts. We will circulate a more detailed analysis of the Harvard and University of North Carolina decisions in the coming days and are available to answer your questions on the spot. The Firm is also hosting a webinar on July 11 that will address the impact of the decision on higher education admissions processes, as well as potential broader implications, including on corporate diversity programs. In the meantime, clients should ensure that any statements issued in response to the decision are reviewed by counsel.


Our O’Melveny Team

O’Melveny’s Diversity, Equity, Inclusion, and Affirmative Action Task Force—made up of an interdisciplinary team of lawyers from our Labor & Employment, Supreme Court, Colleges & Universities, Securities Litigation, and Corporate Investigations practices—helps clients across all sectors prepare for and respond to the latest developments in this area. As previously highlighted, we have already seen an increase in the number of challenges to diversity efforts under Title VII. Our Task Force actively monitors lawsuits brought nationwide concerning corporate diversity programs and is ready to advise and assist clients in navigating this new landscape.

This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Apalla U. Chopra, an O’Melveny partner licensed to practice law in California, Aparna B. Joshi, an O’Melveny partner licensed to practice law in the District of Columbia and Illinois, Tristan Morales, an O’Melveny partner licensed to practice law in the District of Columbia and California, Michael Dreeben, an O’Melveny partner licensed to practice law in the District of Columbia, Jennifer Sokoler, an O’Melveny counsel licensed to practice law in New York, Marni Robinow, an O’Melveny counsel licensed to practice law in California, and David Cohen, an O’Melveny counsel licensed to practice law in New York, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

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