Regarding Supreme Court Cases Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina
March 30, 2023
This is a preliminary brief intended to inform AACP members of the upcoming United States Supreme Court decisions in Students for Fair Admissions v. Harvard University and Students for Fair Admissions v. the University of North Carolina. This brief does not intend to predict what the Supreme Court Justices will conclude in either case, nor does this brief purport to know all the facts or issues that hold some relevance to either case. AACP wants to make sure that our members are aware of the arguments in each case, why it is important to pharmacists and other health professionals, and the potential implications for our profession, programs, and patients. AACP is committed to providing our members and stakeholders close to our community with information that could grow the health profession. Since we are still awaiting SCOTUS’s decision on both cases, the outcomes and implications are still unknown. Decisions are expected to be released anytime between March and June 2023. Once we know how SCOTUS has ruled, we will update the brief and our members accordingly.
The Supreme Court has heard arguments in two cases addressing affirmative action: Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina.
In 2014, a group known as the Students for Fair Admissions (SFFA) filed lawsuits against Harvard College and the University of North Carolina (UNC) for allegedly violating Title VI of the Civil Rights Act (Title VI). Title VI prohibits entities that receive federal funding from discriminating based on race also referred to as affirmative action. SFFA argues that because Asian-American applicants are less likely to be admitted into Harvard University when compared with similar White, Black, or Hispanic applicants – that there is a Title VI violation. In SFFA’s arguments against UNC they contend that UNC violates the Equal Protection Clause of the 14th Amendment by using race-based considerations in its admissions process when such considerations are not necessary to achieve a diverse student body. Additionally, SFFA adds that there are racial-neutral, or non-racial, criteria available when reviewing an applicant that is not discriminatory. It should be noted that the Supreme Court found that Title VI and the Equal Protection Clause of the 14th Amendment seek to achieve similar goals.
Attorneys representing SFFA maintain that racial classification violates the conclusion set in Brown v. Board of Education¸ which rejected the idea that racial classifications should be allowed to influence educational opportunities. Further, SFFA representation provide arguments to the court that urges the court to overturn Grutter v. Bollinger and Regents of the University of California v. Bakke, both of which concluded that some racial considerations in admission criteria is necessary in higher education to achieve diversity. Both UNC and Harvard’s representatives argue that the use of racial conscious considerations are in line with both Grutter and Bakke and that ensuring students are considered based on a holistic review not only promotes diversity but allows for minority students to have an opportunity to be fairly considered.
In both cases, lower courts concluded that both universities conducted permissible use of race to promote diversity, in line with the Supreme Court’s conclusions in Grutter v. Bollinger and Fisher v. University of Texas. In those cases, the courts stated that in some circumstances, higher education institutions could consider race in admissions without violating the Constitution’s Equal Protection Principles. When determining whether a policy, law, or regulation violates Equal Protection based on race the Supreme Court will ask whether that rule was “strictly scrutinized” such that it has a compelling government interest in achieving the rule’s goal. In these cases, SCOTUS concluded that increasing student body diversity is a compelling government interest, so long as such considerations are narrowly-tailored to the purpose of diversity and achieves a benefit that cannot be reached using race-neutral methods.
However, SFFA is asking that the Court revisits these cases and rule that neither conclusions should be permissible, because diversity in the student body should not be considered a compelling interest. Further, SFFA brings forth a concern that even if diversity is a compelling interest, then race-based considerations are “overbroad.” Additionally, there has been no time period established for how long race-based considerations in higher education admissions should be allowed. (CRS)
Constitutional Rules Implicated
To overturn previous Supreme Court decisions, SFFA needs to demonstrate that Harvard and UNC use of race-based considerations is not the only way to achieve a diverse student body. In contrast, Harvard has asserted that the use of race-neutral considerations only has a negative impact on admissions for minority students across the board and there is not a workable race-neutral alternative that will yield the same or comparable results of the student body’s diversity. Nevertheless, SFFA asserts that schools who have accepted federal funds have done so under the condition that they abide by the antidiscrimination requirements of Title VI of the Civil Rights Act of 1964 regardless of the implications.
Several arguments have been presented for the continued use of race-based consideration as a factor when reviewing applicants for higher education programs. In rebuttable to the petitioner’s argument that neither school is utilizing a “color-blind” approach when selecting students based on race (Brown v. Board of Education); UNC and Harvard have argued that “race-based decisions that bring students together are distinguishable from those that segregate.” Additionally, the universities have argued that a requirement for “color-blindness” would “[defying] the Courts longstanding jurisprudence,” for considering the whole of person during admission.
One argument defends the relevance and/or use of diversity as a factor for admissions stating that it has a “compelling government interest.” The Justices have asked several questions related to the issue of diversity at oral argument purporting to define a workable standard that could replace the use of affirmative action.
Effects on Pharmacy Schools
Overall, the impending decision will affect the admissions criteria at higher education institutions, including medical and pharmacy institutions, regardless of its outcome. According to the Congressional Research Service, many commentators believe the court will overturn Grutter and hold that enrolling a diverse student body and supporting race-based college and university admissions decisions is not a compelling government interest. Should this be the holding, education institutions should consider what a holistic, race-neutral admissions procedure, which does not negatively deprive minority students of the pursuit of higher education, looks like for their institution. Notably, at least nine states have already prohibited the use of race-based considerations in higher education admissions. Therefore, it could be that in those states these decisions will not affect the admission process of those universities in those states. However, those states experience their own share of difficulties as it pertains to maintaining a diverse student body with or without the effect of the Supreme Court’s decision on affirmative action.