Introduction
In 2021, it was reported that there were only eight Black students enrolled in a class of 749 ninth graders at New York City’s most selective public high school, Stuyvesant.[1] In the same year, a group of public school students brought a lawsuit challenging admissions programs at selective New York City public schools, arguing that these schools are racially segregated as a result of their admissions policies.[2] Due to a lack of racial diversity at highly selective public high schools like Stuyvesant, school officials and policy makers have been debating how to rethink admissions policies to allow for a more diverse student body.[3] This issue, however, is not unique to one city, but instead permeates public schools across the country.
Accordingly, highly selective K–12 public schools in other states have recently modified admissions policies to allow for a more racially diverse student body. Yet some of these new policies have been under legal scrutiny.[4] For example, three parents sued the Philadelphia school district after it reorganized the special admissions policy in its selective high schools because the plaintiffs believed that the new policy was too focused on race.[5] In Virginia, school officials rewrote their admissions policy to address the lack of diversity at Thomas Jefferson High School for Science and Technology (TJ), a highly selective public school in the Washington, D.C. area. TJ’s new admissions plan was challenged by a coalition of over 200 members in Coalition for TJ v. Fairfax County Board (Coalition v. Fairfax),[6] and a federal judge found that the school had engaged in illegal racial balancing.
U.S. Supreme Court Justice Harry Blackmun wrote that “[i]n order to get beyond racism, we must first take account of race.”[7] The historical impact of discrimination related to racial bias, particularly income inequality, plays out in public schools.[8] As a result, minoritized populations remain underrepresented in selective educational programs.[9] Thus, many K–12 schools and universities have attempted to address this problem through an affirmative action program, which is also often referred to as a race-conscious policy.[10] Affirmative action in this context occurs when school officials take race into account as one of many factors when assembling their student bodies in order to create a more diverse educational program.[11] Alternatively, schools might try to increase student body diversity using race-neutral criteria; however, race is not an explicit consideration under this type of policy. When challenged in courts, race-conscious policies that expressly take race into account are subject to higher scrutiny than race-neutral policies and thus might be more likely to be dismantled.
The debate over race-conscious admissions is particularly timely as the U.S. Supreme Court has agreed to hear two affirmative action cases in its next term involving Harvard University and the University of North Carolina at Chapel Hill (UNC).[12] Decisions are expected in Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll. and Students for Fair Admissions, Inc., v. Univ. of N.C. (hereinafter both cases are referred to as SFFA v. Harvard) this spring, and they could have significant implications for K–12 programs that seek to foster greater racial diversity.
This Essay discusses the Coalition v. Fairfax decision and situates the case within the national context of the current affirmative action debate.[13] Part I provides the broad legal context for how the judiciary analyzes Equal Protection Clause and Title VI challenges. Part II summarizes the forty-year precedent set by the Supreme Court establishing the constitutionality of affirmative action policies in the higher education context. Part III contrasts this rich precedent with the sole Supreme Court case regarding affirmative action in the public K–12 school context. Part IV details the Coalition v. Fairfax decision, situating it within Supreme Court precedent regarding affirmative action. Part V explores the upcoming SFFA v. Harvard cases, and the Essay concludes with an investigation of the potential implications of the decisions on admissions policies in public K–12 schools.
I. LEGAL CONTEXT: JUDICIAL REVIEW OF EQUAL PROTECTION CLAUSE AND TITLE VI CHALLENGES
Several significant historical changes to public school admissions have been the result of federal law, court decisions, and constitutional provisions. For example, Brown v. Board of Education[14] prohibited the practice of denying students of color access to public schools that typically served white students, and subsequent federal civil rights laws like Title VI of the Civil Rights Act of 1964 have sought to remove other barriers for minoritized students.[15] There is no doubt that laws and court opinions influence educational policy matters, and this is especially the case with regard to affirmative action and race-conscious programs in K–12 schools and universities.
Legal challenges to affirmative action or race-conscious programs in both the public K–12 school and higher education contexts usually involve Equal Protection Clause and Title VI claims.[16] It is important to know how courts have applied both the constitutional provision and federal law to this issue.
The Equal Protection Clause of the Fourteenth Amendment states, “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”[17] This requires all similarly situated individuals be treated the same.[18] The Equal Protection Clause was drafted by Congress during Reconstruction from 1866-1868 to ensure that African Americans were treated equally under the law.[19] Acknowledging patterns of past discrimination, courts have interpreted the Equal Protection Clause as requiring the state to provide justification in treating certain classifications of individuals differently than others.[20] In doing so, the Supreme Court has employed three different levels of scrutiny for different classifications of people: strict scrutiny, intermediate scrutiny, and rational basis review.[21] Classification based on race falls under strict scrutiny, which requires both a compelling governmental objective and a demonstration that the classification is narrowly tailored to serve that interest.[22] When K–12 schools and universities consider race in an admission program, for example, strict scrutiny review is employed by the courts. Race-neutral plans, on the other hand, do not trigger strict scrutiny because they do not consider the race of individual applicants. Instead, a race-neutral plan is subject to rational basis review. A much easier standard to meet, rational basis review only requires that the law be rationally related to a legitimate government objective for it to be upheld by the court.[23]
Title VI of the Civil Rights Act of 1964 covers discrimination based on race, color, and national origin.[24] It applies to any program or activity receiving federal financial assistance.[25] Whereas the Equal Protection Clause does not apply to private schools because there is no state action,[26] Title VI does apply to private institutions that receive federal funding.[27] When a program is found to have discriminated against individuals on the basis of race, the federal agency that provides the program with financial assistance can either initiate fund termination proceedings or refer the matter to the Department of Justice for appropriate legal action.[28]
II. SUPREME COURT PRECEDENT REGARDING AFFIRMATIVE ACTION IN HIGHER EDUCATION ADMISSIONS PROCESSES
Indeed, the federal judiciary and the country’s highest Court have played a key role in outcomes related to students’ civil rights.[29] In the most recent case to address affirmative action policies in higher education, Fisher v. University of Texas at Austin (Fisher II),[30] the U.S. Supreme Court found the University of Texas’s race-conscious admissions policy to be constitutional. The University of Texas’s undergraduate admissions plan requires implementation of two components for admissions. First, they offer “admission to any students who graduate from a Texas high school in the top 10 percent of their class.” Second, “the remainder of its incoming freshman class, some 25 percent,” is filled, “by combining an applicant’s . . . SAT score and high school academic performance . . . with . . . a holistic review containing numerous factors, including race.”[31] In June 2016, the U.S. Supreme Court upheld the University of Texas’s race-conscious admissions policy in a 4–3 decision; it found no violation of the Equal Protection Clause.[32] Justice Kagan recused herself from this decision because she was involved with this issue when she served as the U.S. Solicitor General.[33] Justice Scalia had passed away before the decision.[34]
The Fisher II opinion was a departure from the Court’s initial decision three years prior in Fisher I to vacate the Fifth Circuit’s opinion upholding the policy. The federal district court had upheld the University’s admissions policy, finding that it was consistent precedent.[35] The Fifth Circuit Court of Appeals affirmed this decision and later denied a request by Fisher for an en banc review, which is a request to have the case reheard in front of all active judges in that circuit.[36] The U.S. Supreme Court decided to hear the case and issued an opinion in 2013.[37] In a 7–1 decision, the Supreme Court vacated the Fifth Circuit’s opinion and sent the case back to the lower court with instructions to analyze the University’s admissions policies more carefully.[38] Applying strict scrutiny, the Court needed the University of Texas to demonstrate that its admissions plan was narrowly tailored to obtain the educational benefits of diversity.[39]
Prior to the decisions in Fisher I and Fisher II, Justice O’Connor wrote for the majority upholding the University of Michigan Law School’s admissions program in Grutter v. Bollinger (2003) because it considered all of an applicant’s characteristics—including race—flexibly and holistically in the admissions process.[40] After the Grutter Court found that diversity was a compelling interest, it next addressed whether the law school’s program was narrowly tailored.[41] The Court highlighted that when race-based action is necessary to further a compelling governmental interest, this action will not violate the Equal Protection Clause as long as the narrow-tailoring requirement is also satisfied.[42] Narrow tailoring will require that there is a fit between the state’s objective and its means.[43] According to the Court, narrow tailoring does not require that every conceivable race-neutral policy must be attempted before an affirmative action program is adopted.[44] Finally, Justice O’Connor suggested that affirmative action programs should no longer be necessary within twenty-five years of issuing the opinion.[45]
The Gratz v. Bollinger[46] opinion was issued the same day as Grutter, but here the majority struck down the University of Michigan’s undergraduate affirmative action program because it was not narrowly tailored. In Justice Rehnquist’s majority opinion, the Court explained that the College of Literature, Science and the Arts’ admissions program automatically gave twenty points to each applicant from an “underrepresented minority” group.[47] The Court reasoned that Justice Powell’s 1978 opinion in the University of California Regents v. Bakke[48] emphasized that students should be evaluated individually.[49] Thus, the undergraduate admissions program’s method of automatically distributing twenty points to a student based on their status as a member of an underrepresented group was not flexible enough to survive strict scrutiny review and therefore violated the Equal Protection Clause.[50]
Considered together, Grutter and Gratz dispel the notion that use of carefully constructed affirmative action programs had been foreclosed as unconstitutional by the Court. Fisher II reaffirmed this point.[51] In sum, there is over forty years of Supreme Court precedent that allows institutions of higher education to consider race as one of many factors in the admissions process, so long as such plans are narrowly tailored.
III. SUPREME COURT PRECEDENT REGARDING RACE-CONSCIOUS ADMISSIONS PROCESSES IN PUBLIC K–12 SCHOOLS
Though there is a rich history of Supreme Court precedent regarding affirmative action admissions policy in higher education, the Court has examined a race-conscious policy for K–12 schools only one time. In Parents Involved in Community Schools v. Seattle School District No. 1 (Parents Involved)[52], the Court found that public schools in Jefferson County, Kentucky and Seattle, Washington could not take an explicit account of race into consideration to achieve integration within their voluntary desegregation efforts. The plurality opinion for this split decision (4–1–4) was written by Chief Justice Roberts. The Chief Justice wrote that the districts, “failed to show that they considered methods other than explicit racial classification to achieve their stated goals.”[53] He also observed that the Court’s decisions about higher education did not apply to high schools, noting the unique nature of universities and that Grutter was a limited ruling.[54] Grutter did not apply to Parents Involved because the Jefferson County and Seattle plans did not include an individualistic examination of students. Instead, both K–12 schools implemented approaches where the goal of diversity meant having the demographics of their student bodies reflect the demographics of the communities that the schools served.[55]
At the same time, however, the Court recognized that it is possible for racial diversity to be a compelling state interest. Justice Kennedy also found the plan unconstitutional but asserted in his concurring opinion that the Constitution does not mandate that school districts accept the “status quo of racial isolation in schools,” and suggested that public schools may sometimes consider race to ensure equal educational opportunities.[56] Kennedy also observed that the nation has a “historic commitment to creating an integrated society.”[57]
Although some members of the Court noted that diversity was a compelling state interest, they did not find that the schools’ policies were narrowly tailored; in this case, the student assignment plan based on racial classifications was not narrowly tailored to the end goal of achieving racial diversity.[58] Justice Kennedy’s controlling concurrence specifically stated:
School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race. These mechanisms are race conscious but do not lead to different treatment based on a classification that tells each student he or she is to be defined by race, so it is unlikely any of them would demand strict scrutiny to be found permissible. Executive and legislative branches, which for generations now have considered these types of policies and procedures, should be permitted to employ them with candor and with confidence that a constitutional violation does not occur whenever a decisionmaker considers the impact a given approach might have on students of different races. Assigning to each student a personal designation according to a crude system of individual racial classifications is quite a different matter; and the legal analysis changes accordingly.[59]
After the Parents Involved decision, the U.S. Department of Education and the U.S. Department of Justice released federal guidance in 2011 to assist K–12 school officials in understanding the legal parameters around race-conscious policies. This guidance did not have the force of law, but it did provide school districts with some legal parameters. It clarified to school officials when race can be considered to avoid racial isolation and increase diversity.[60] The guidance stated:
School districts should first determine if they can meet their compelling interests by using race-neutral approaches. Race-neutral approaches can be used for decisions about individual students, such as admissions decisions for competitive schools or programs, as well as for decisions made on an aggregate basis, such as the drawing of zone lines that affect a large number of students.[61]
The Trump administration rescinded this guidance in 2018. It is assumed that the Biden administration will reinstate guidance similar to the initial published statement, but this will likely depend on the outcomes of SFFA v. Harvard.[62] Even if the Court reverses over forty years of precedent in its decisions later this spring, public K–12 schools like TJ should still be able to devise plans with their legal counsel that encourage racial diversity and can withstand legal challenges.
IV. COALITION FOR TJ V. FAIRFAX COUNTY SCHOOL BOARD
Similar to Jefferson County and Seattle, school officials at Thomas Jefferson High School (TJ) in Virginia sought to create a student body that better reflected the racial makeup of the community it served. In 2020, the Fairfax County School Board (Board) implemented new admissions criteria at the highly selective school; the Board attempted to use race neutral measures. Prior to 2020, eighth grade applicants to TJ were required to, “(a) reside in one of the five participating school divisions; (b) be enrolled in 8th grade; (c) have a minimum core 3.0 grade point average (GPA); (d) have completed or be enrolled in Algebra I; and (e) pay a $100 application fee,” as well as complete three standardized tests.[63] In order to increase the school’s racial diversity and to align more with the racial demographics of the county, the Board eliminated the test requirement and the $100 application fee in the fall of 2020.[64] The Board adopted a new plan where 1.5 percent of students from each eighth grade class at participating middle schools would be admitted.[65] The Board also sought a more holistic evaluation that included “experience factors”—including whether the child was a student at a middle school considered historically underrepresented at TJ, was an English learner, was receiving Special Education services, and was eligible for free and reduced lunch—and explained that it focused on these race-neutral criteria in determining admissions.[66]
The racial composition of the school prior to implementation of the new admissions policy during the 2020–21 school year was 71.97 percent Asian American, 18.34 percent white, 3.05 percent Latinx, and 1.77 percent Black.[67] In contrast, the racial composition of students in the county was 36.8 percent white, 27.1 percent Latinx, 19.8 percent Asian American, and 10 percent Black.[68] After the new policy was implemented, Asian American enrollment dropped from about 70 percent to about 50 percent of the class.[69] The plaintiffs involved in this lawsuit included Asian American parents and their children, among others, who had either already applied to the school or were planning to do so in the near future.[70] They alleged an Equal Protection Clause violation.[71]
The federal district court ruled that TJ’s admissions policy did not satisfy strict scrutiny requirements.[72] When reviewing the Fairfax County School Board’s (Board) communications about the new approach to admissions, the judge found that Board members sought to change the racial makeup of the student body.[73] Specifically, the plaintiffs’ Memorandum in Support of Summary Judgment that was filed with the court revealed a text exchange in which a Board member wrote that the new proposal, “[will] whiten our schools and kick [out] Asians. How is that achieving the goals of diversity?”[74] Another Board member replied, “I mean, there has been an anti [A]sian feel underlying some of this, hate to say it, lol!”75] In the opinion, the judge wrote that, “[E]mails and text messages between Board members and high-ranking [Fairfax County Public School] officials leave no material dispute that, at least in part, the purpose of the Board’s admissions overhaul was to change the racial makeup to TJ to the detriment of Asian-Americans.”[76]
The judge discussed Village of Arlington Heights v. Metropolitan Housing Development Corp.,[77] a 1977 U.S. Supreme Court case, to explain that once the plaintiff provides any significant evidence that a policy was motivated by race, the burden then shifts to the state to show that it would have enacted the same policy even in the absence of racial motives.[78] If the government is unable to demonstrate it could do so, the policy will be struck down.[79] In the case at hand, the Coalition for TJ v. Fairfax judge reasoned that it would be difficult for the Board to demonstrate that it could have adopted a similar policy even in the absence of the racial balancing goals that Board officials discussed when enacting the new admissions policy.[80] The judge interpreted the emails to mean that the Board engaged in racial balancing.[81] Specifically, the judge found “substantial evidence of disparate impact” in TJ’s admissions policies and that the “undisputed evidence demonstrates precisely how the Board’s actions caused, and will continue to cause, a substantial racial impact” that harmed Asian American students.[82] He granted the plaintiffs’ motion for summary judgment and denied the Board’s motion for summary judgment.[83] The Fourth Circuit Court of Appeals stayed the district court’s opinion pending appellate review. This hold allows the revised admissions policy to continue to be used at TJ.[84] The U.S. Supreme Court let the Fourth Circuit’s stay stand after the Board filed an emergency application for review.[85]
At first glance, TJ did not use race as a factor in its newly adopted admissions policies; the Board employed a race-neutral admissions policy by allowing admission of 1.5 percent of students from each middle school in the district. Race-neutral plans do not consider the race of individual applicants, and this is true of the TJ policy. The TJ policy is similar to Texas’ top 10 percent plan that was examined and upheld in previous Supreme Court cases, Fisher I and Fisher II.[86] The Coalition v. Fairfax judge, however, found discrimination against Asian American students based to some extent on the email and text exchanges among Board members. In other words, though the plan itself was race-neutral, the underlying Board discussions about creating more diversity relied too heavily on race, triggering strict scrutiny review.
Coalition v. Fairfax comes at a time when other selective public schools are deliberating similar changes to their admissions programs in order to create more racially diverse student bodies.[87] The Pacific Legal Foundation represented the plaintiffs in this case and has been involved in similar lawsuits in other states.[88] More litigation is expected.[89]
V. NEW DEVELOPMENTS IN AFFIRMATIVE ACTION POLICY: SFFA V. HARVARD
As previously mentioned, the Supreme Court will examine affirmative action plans at Harvard University and UNC in its current term in SFFA v. Harvard.[90] Students for Fair Admissions (SFFA) has alleged that race-conscious admissions policies at both universities discriminate against Asian American applicants.[91] The basic argument from plaintiffs in both cases is that these admissions programs do not satisfy strict scrutiny requirements.[92]
In 2019, a federal judge found that Harvard University’s admissions policies did not discriminate against Asian American applicants.[93] At Harvard, race is considered as one of many factors in its admission program.[94] SFFA filed a lawsuit on behalf of anonymous college applicants, contending that Harvard’s admissions process relied on a racial quota that allegedly held Asian American students to a higher standard than applicants of other races.[95] In this ruling, the judge recognized that race-conscious policies can help ensure that colleges “offer a diverse atmosphere that fosters learning, improves scholarship, and encourages mutual respect and understanding.”[96] At the same time, the judge observed that Harvard’s process is “not perfect,” and as a result, she recommended that Harvard develop a clear policy on the use of race in admissions and provide implicit bias training to the university’s admissions committee.[97] In 2020, the First Circuit Court of Appeals affirmed this decision.[98] The plaintiffs then appealed their case to the U.S. Supreme Court.[99]
At UNC, SFFA—the same group that filed suit on behalf of anonymous Harvard applicants—filed a lawsuit on behalf of applicants who were denied admission, alleging that UNC’s use of race as a factor in its admissions process violated both Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause.[100] The federal district court judge upheld UNC’s plan.[101] The judge found that the university had met its burden; the admissions program could withstand strict scrutiny.[102]
SFFA has appealed this case to the U.S. Supreme Court, bypassing the Fourth Circuit, and the Court was supposed to consider both the Harvard and the UNC affirmative action cases together in 2023.[103] For reasons not publicly disclosed, the Court decoupled the two cases in July 2022, and they are being heard separately.[104] Pulling from the Court’s forty years of affirmative action precedent, Harvard and UNC certainly will need to demonstrate that they followed the Court’s guidelines in considering the anonymous applicants’ applications by carefully reviewing their admissions programs to ensure that applicants received individualistic review and that their race was considered flexibly.[105]
A notable difference between the two cases is that Harvard is a private institution and UNC is a public institution.[106] Since the Equal Protection Clause does not apply in the private school context, UNC is more constrained by the U.S. Constitution than Harvard because the Equal Protection Clause of the Fourteenth Amendment is being examined.[107] Both public and private universities, must follow federal civil rights laws that prohibit discrimination based on race, so Title VI is at issue for both Harvard and UNC.
The SFFA v. Harvard rulings will have national implications for colleges and universities seeking to foster racially diverse student bodies. Many universities contend that race-conscious admissions policies are needed to address the many inequities that exist within the U.S. public education system.[108] The rulings will likely impact K–12 schools too.[109] At the K–12 level, the decision could affect schools that consider race as one of many factors when attempting to diversify their gifted and talented programs, scholarship programs, and admissions programs.[110] For K–12 schools that use race-neutral criteria, the SFFA v. Harvard decisions should not impact current practices unless the current Supreme Court reverses course on this matter.[111]
VI. THE FUTURE OF AFFIRMATIVE ACTION: WHAT IS AT STAKE?
Public schools across the nation continue to debate how best to design admission policies that maximize their goals of diversity. To that end, administrators in K–12 schools sometimes contemplate flexible approaches to expose students to a more diverse learning educational environment. As mentioned above, K–12 schools with selective admissions programs in Washington, D.C. suburbs,[112] New York,[113] Philadelphia,[114] and elsewhere have been implementing new policies that promote diversity in K–12 schools in an attempt to admit more diverse student bodies.[115] In doing so, school administrators and their legal counsel have likely looked to Supreme Court precedent for guidance regarding compliance, including the Parents Involved decision as it deals directly with race-conscious policies in public K–12 schools and the numerous cases concerning affirmative action in higher education admissions like Gratz, Grutter, and Fisher.
The recent challenges by SFFA against Harvard and UNC have left the validity of race-conscious programs somewhat in flux as the current membership of the Supreme Court presents some uncertainty around the viability of affirmative action and race-conscious policy. Three current Justices—Roberts, Thomas, and Alito—have already ruled against affirmative action policies in the context of admission to educational institutions.[116] Justices Gorsuch, Coney Barrett, and Kavanaugh are new additions to the Court since the last affirmative action case was decided, and many have speculated that this change in the Court’s composition is not favorable for maintaining affirmative action programs.[117]
Justice O’Connor wrote in Grutter that, “We expect that [twenty-five] years from now, the use of racial preferences will no longer be necessary.”[118] Nearly fourteen years after the 2003 Grutter and Gratz decisions, Justice O’Connor told her biographer that the twenty-five year deadline “may have been a misjudgment.”[119] The current Court, however, is expected to disagree with O’Connor’s more recent assessment and instead enforce this twenty-five year deadline in an effort to overturn established precedent and rule that affirmative action policies are unconstitutional.[120] Today—nearly twenty years after Grutter—research shows that K–12 students remain segregated in public schools and serious inequity persists.[121] Assuming the Court does not find the twenty-five-year timeline to be a misjudgment and overturns its forty years of precedent on affirmative action, universities are in for a profound shift in how they approach designing admissions policies aimed at increasing diversity of their student bodies. Such a decision would impact K–12 race-conscious plans as well, as selective K–12 schools would be further limited in considering race in any type of admission program that uses an individualized review of students.[122]
Beyond race-conscious policies, how this Court might view race-neutral policies in the future also remains unclear. As noted, race-neutral plans do not consider the race of individual applicants and therefore should not trigger strict scrutiny review. These types of policies have been implemented to foster greater diversity in educational programs. While the Court has previously upheld race-neutral policies in education, like Texas’s 10 percent plan,[123] it remains to be seen how the current Court might view other types of race-neutral plans that involve revising admission criteria to increase racial diversity.[124] One would hope that the Court would rely on past precedent establishing how to analyze race-neutral criteria, but some of the justices appear open to the possibility of overturning several long-standing decisions.[125]
Conclusion
Race-conscious admissions programs like affirmative action policies have been a way for educational institutions to address some societal inequities, and they allow students to be exposed to a more diverse learning environment. These programs have survived strict scrutiny review for several decades including most recently in 2016. If the Supreme Court overturns its recent precedent in this area in SFFA v. Harvard, we can expect some universities to become less racially diverse. Of course, these decisions would not impact those states that have enacted state statutes or constitutional amendments that prohibit considering race in admissions programs.
If race-conscious affirmative action programs are found to be unconstitutional, university officials will need to develop policies and practices that align with this new legal landscape; some institutions will likely need to shift gears in the way they recruit and admit students. Moreover, there will likely be some ripple effects that extend beyond university admissions. As discussed, these cases may affect admissions at highly selective K–12 schools, such as TJ in Virginia. The end result would indeed undermine school and university officials’ ability to create a more diverse student body.
[1] Eliza Shapiro, Only 8 Black Students Are Admitted to Stuyvesant High School, N.Y. Times, (Apr. 29, 2021), https://www.nytimes.com/2021/04/29/nyregion/stuyvestant-black-students.html [https://perma.cc/ZRX2-25G6].
[2] See Christina Velga, NYC Students File Lawsuit Taking Aim at Admissions Screens, School Segregation, Chalkbeat N.Y. (Mar. 9, 2021, 6:56 AM), https://ny.chalkbeat.org/2021/ 3/9/22321193/nyc-students-file-lawsuit-taking-aim-at-admissions-screens-schoolsegregation [https://perma.cc/G5YX-Q7BM].
[3] See Richard V. Reeves & Ashley Schobert, Elite or Elitist? Lessons for Colleges From Selective High Schools, Brookings (July 31, 2019), https://www.brookings.edu/research/ elite-orelitist- lessons-for-colleges-from-selective-high-schools [https://perma.cc/U7GC-83EJ].
[4] See id.; see also, James Vaznis, US Court of Appeals Takes Up Boston Exam School Case, Bos. Globe (Dec. 7, 2022), https://www.bostonglobe.com/2022/12/07/metro/us-courtappeals- takes-up-boston-exam-school-case/ [https://perma.cc/E8HM-T6X3] (students contending that they were denied spot at Boston exam school after the admissions policy was changed to place more emphasis on geographic areas of the city).
[5] Dale Mezzacappa, Philly Parents Take New Selective Admissions Policy to Court, Chalkbeat Phila. (Apr. 28, 2022, 6:09 PM), https://philadelphia.chalkbeat.org/2022/4/28/ 23047571/philly-parents-challenge-selective-admissions-racist [https://perma.cc/89PFZKQG].
[6] No. 1:21cv296, 2022 U.S. Dist. LEXIS 33684, at *4–5, 33–34 (E.D. Va. Feb. 25, 2022).
[7] Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 407 (1978).
[8] See Linda Darling-Hammond, Unequal Opportunity: Race and Education, Brookings (Mar. 1, 1998), https://www.brookings.edu/articles/unequal-opportunity-race-andeducation [https://perma.cc/DD68-D77M].
[9] See id.; Connor Maxwell & Sara Garcia, 5 Reasons to Support Affirmative Action in College Admissions, Ctr. Am. Progress (Oct. 1, 2019), https://www.american progress.org/article/5-reasons-support-affirmative-action-college-admissions [https://www.americanprogress.org/article/5-reasons-support-affirmative-actioncollege-
admissions].
[10] See What You Need to Know About Affirmative Action at the Supreme Court, ACLU (Oct. 31, 2022) https://www.aclu.org/news/racial-justice/what-you-need-to-know-aboutaffirmative- action-at-the-supreme-court [https://perma.cc/Q5XH-9Y76].
[11] See id.
[12] See Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 142 S. Ct. 895 (2022) (granting certiorari and consolidating the two cases). Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., No. 20-1199, 2022 U.S. LEXIS 3280 (July 22, 2022) (decoupling the Harvard case); Students for Fair Admissions, Inc., v. Univ. of N.C., No. 21-707, 2022 U.S. LEXIS 3281 (July 22, 2022) (decoupling the UNC case); see also Nancy Leong & Erwin Chemerinsky, Don’t Use Asian Americans to Justify Anti-Affirmative Action Politics, Wash. Post (Aug. 3, 2017, 6:00 AM), https://www.washingtonpost.com/news/posteverything/wp/2017/08/03/dont-useasian-
americans-tojustify-anti-affirmative-action-politics [https://perma.cc/UPG4-/NQAG] (questioning whether this is an attempt to protect Asian American rights or really just a cover to push a conservative agenda).
[13] The purpose of this Essay is to examine the legal issues involved. Other authors have examined data, philosophical or ethical issues, and other research to demonstrate the many angles of this complex issue. See, e.g., Catherin L. Horn & Michael Kurlaender, Civ. Rts, Project At Harv. U., The End of Keyes - Resegregation Trends and Achievement in Denver Public Schools 5 (2006) (explaining that students who attend diverse schools have increased levels of comfort with other racial groups); Maureen T. Hallinan, Diversity Effects on Student Outcomes: Social Science Evidence, 59 Ohio State L.J.733, 745 (1998) (observing that diverse schools are more likely to produce interracial sociability and friendship); Liliana M. Garces & Oiyan Poon, Civ. Rts. Project at UCLA, Asian Americans and Race-Conscious Admissions: Understanding the Conservative Oppostitions Strategy of Misinformation, Intimidation, and Racial Division (2018) (discussing Harvard and UNC cases as well as recent attacks against race-conscious policies in higher education)./small>
[14] 347 U.S. 483 (1954).
[15] See 42 U.S.C § 2000d. Title VI prohibits programs that receive federal financial assistance from engaging in race discrimination.
[16] See Suzanne E. Eckes, Race-Conscious Admissions Programs: Where Do Universities Go From Gratz and Grutter?, 33 J.L. & Educ. 21, 22–23 (2004).
[17] U.S. Const.amend. XIV, § 1.
[18] See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).
[19] See 14th Amendment to the U.S. Constitution: Civil Rights (1868), Nat'l Archive (Feb. 8, 2022) https://www.archives.gov/milestone-documents/14th-amendment [https://perma.cc/46G3-MKVX].
[20] See Eckes, supra note 16.
[21] See Eckes, supra note 16..
[22] See Eckes, supra note 16.
[23] See Eckes, supra note 16.
[24] 42 U.S.C. § 2000d.
[25] Id.
[26] See Preston C. Green III, Julie F. Mead, & Suzanne E. Eckes, Covenants to Discriminate: How the Anti-LGBT Policies of Participating Voucher Schools Might Violate the State Action Doctrine, 19 U.N.H. L. Rev. 163, 166 (2021).
[27] See id.
[28] See Overview of Title VI of the Civil Rights Act of 1964, U.S. Dep't Just. (Apr. 25, 2022), https://www.justice.gov/crt/fcs/TitleVI-Overview#:~:text=If%20a%20 recipient%20of%20federal,Justice%20for%20appropriate%20legal%20action [https://perma.cc/L22S-XVS9].
[29] See generally George B. Daniels & Rachel Pereira, May It Please the Court: Federal Courts and School Desegregation Post-Parents Involved, 17 U. Pa. J. Const. L. 625 (2015) (highlighting the prominent role of the federal judiciary in interpreting students’ civil rights).
[30] 579 U.S. 365 (2016).
[31] Id.
[32] Id. at 388.
[33] See Stephen Wermiel, SCOTUS for Law Students: Justice Kagan’s Recusals, Scotusblog (Oct. 9, 2012, 9:50 PM), https://www.scotusblog.com/2012/10/scotus-for-law-students-sponsored-by-bloomberg-law-justice-kagans-recusals [https://perma.cc /6S8N-2X79].
[34] See Hannah Daniel, Death of Justice Scalia Complicates Fisher v. UT Decision, Daily Texan (Feb. 17, 2016), https://thedailytexan.com/2016/02/17/death-of-justice-scalia-complicates-fisher-v-ut-decision [https://perma.cc/WUW7-P8NU?type=standard].
[35] Grutter v. Bollinger, 539 U.S. 306 (2003) (upholding a race-conscious admissions program at the University of Michigan); Fisher v. Univ. of Tex. at Austin, 645 F. Supp. 2d 587, 601–08 (W.D. Tex. 2009).
[36] Fisher v. Univ. of Tex. at Austin, 631 F. 3d 213 (5th Cir. 2011) (upholding district court decision); Fisher v. Univ. of Tex. Austin, 644 F. 3d 301 (5th Cir. 2011) (en banc denied).
[37] Fisher v. Univ. of Tex. at Austin, 570 U.S. 297 (2013).
[38] Id. at 314.
[39] Id. at 314-15.
[40] Grutter, 539 U.S. at 337.
[41] Id. at 334.
[42] Id.
[43] See Narrow Tailoring Definition, Law Insider, https://www.lawinsider.com/dictionary/ narrow-tailoring [https://perma.cc/Z4JC-G9TP].
[44] See David H.K. Nguyen, Jessica Ulm, Colleen Chesnut & Suzanne Eckes, Strict Scrutiny & Fisher: The Court’s Decision and Its Implications, 299 Educ. L. Rep. 355, 358 (2014).
[45] See id. at 355.
[46] 539 U.S. 244, 275 (2003).
[47] Id. at 266.
[48] 438 U.S. 265 (1978).
[49] Gratz, 539 U.S. 244 at 271.
[50] See Eckes, supra note 16, at 63–4; Nguyen et al., supra note 44, at 358.
[51] Nguyen et al., supra note 44, at 372–74; Fisher v. Univ. of Tex. at Austin, 579 U.S. 365 (2016).
[52] 551 U.S. 701, 745 (2007).
[53] Id. at 735.
[54] See Grutter v. Bollinger, 539 U.S. 306 (2003); Parents Involved, 551 U.S. at 792–793.
[55] For example, in Seattle, the district would use tiebreakers when a school was oversubscribed. The first tiebreaker related to siblings. The second tiebreaker was the consideration of the racial composition of the school. When using this tiebreaker white students or students of color might be favored—it depended on how the school’s racial composition would be impacted. The goal was to bring the school closer to maintaining racial diversity that more reflected the demographics of the larger Seattle community. Id. at 711–12.
[56] Id. at 788 (Kennedy, J., concurring).
[57] Id. at 797.
[58] Id. at 726.
[59] Id. at 789 (citations omitted).
[60] See U.S. Dep't of Just. & U.S. Dep't of Educ., Guidance On The Voluntary Use of Race to Achieve Diversity And Avoid Racial Isolation In Elementary And Secondary Schools, 1–2 (2011), http://www2.ed.gov/about/offices/list/ocr/docs/guidance-ese-201111.pdf [https://perma.cc/3VAD-882Z].
[61] See id. at 6.
[62] See Nate Raymond, Biden Administration Asks U.S. Supreme Court to Reject Harvard Affirmative Action Case, Reuters (Dec. 8, 2021), https://www.reuters.com/world/us/biden-administration-asks-us-supreme-court-reject-harvard-affirmative-action-2021-12-09 [https://perma.cc/P2LE-FEJN].
[63] Coal. for TJ v. Fairfax Cnty. Sch. Bd., No. 1:21cv296, 2022 U.S. Dist. LEXIS 33684, at *4–5 (E.D. Va. Feb. 25, 2022).
[64] Id.
[65] Id. at *12
[66] Id. at *6.
[67] Id. at *3.
[68] Id.
[69] Id. at *6-7.
[70] Id. at *4.
[71] Pl.’s Mem. in Supp. of Mot. for Summ. J. at 12–13, Coal. for TJ v. Fairfax Cnty. Sch Bd. No. 1:21cv296, 2022 U.S. Dist. LEXIS 33684 (E.D. Va. Feb. 25, 2022) [hereinafter Mem. in Support of MSJ].
[72] Coal. for TJ, 2022 U.S. Dist. LEXIS 33684, at *35.
[73] Id. at *29.
[74] Mem. in Support of MSJ, supra note 71, at 31.
[75] Mem. in Support of MSJ, supra note 71, Ex. J.
[76] Coal. for TJ, 2022 U.S. Dist. LEXIS 33684, at *29.
[77] 429 U.S. 252 (1977).
[78] Coal. for TJ, 2022 U.S. Dist. LEXIS 33684, at *16.
[79] See id. at *15–19.
[80] Id.
[81] Id. at *29–30.
[82] Id. at *17.
[83] Id. at *35.
[84] Coal. for TJ v. Fairfax Cty. Sch. Bd., No. 22-1280, 2022 U.S. App. LEXIS 8682 (4th Cir. Mar. 31, 2022).
[85] See Andrew Chung & Lawrence Hurley, The U.S. Supreme Court Allows High School Admissions Policy in Race Dispute, Reuters (Apr. 25, 2022, 2:26 PM), https://www.reuters.com/world/us/us-supreme-court-allows-high-school-admissions-policy-race-dispute-2022-04-25 [https://perma.cc/H2P4-UXFZ].
[86] See Robert Barnes & Hannah Natanson, Supreme Court Lets Thomas Jefferson High School Admissions Policy Stand, Wash. Post (Apr. 25, 2022, 5:22 PM), https://www.washingtonpost.com/politics/2022/04/25/supreme-court-high-school-admissions-race [https://perma.cc/J5W7-G8U5]; Ian Millhiser, A New Supreme Court Case Makes George W. Bush Look Like a Racial Justice Crusader, Vox (Apr. 14, 2022, 7:30 AM), https://www.vox.com/2022/4/14/23022265/supreme-court-affirmative-action-coalition-tj-fairfax-school-george-bush-race [https://perma.cc/S8HL-ER2M].
[87] See Eliza Shapiro, New York City Will Change Many Selective Schools to Address Segregation, N.Y. Times (Sept. 15, 2021), https://www.nytimes.com/2020/12/18/ nyregion/nyc-schools-admissions-segregation.html [https://perma.cc/5DEJ-ZBQH]; Emma Talley, Lowell High School’s Racial Demographics to Change Next Year, After Merit-Based Admissions Dropped, S.F. Chron. (Mar. 25, 2021, 6:51 PM), https://www.sf chronicle.com/education/article/Lowell-High-School-s-racial-demographics-to-16050648.php [https://perma.cc/35YW-Z4V8].
[88] See Stephanie Saul, Conservatives Open New Front in Elite School Admission Wars, N.Y. Times (Oct. 31, 2022), https://www.nytimes.com/2022/02/16/us/school-admissions-affirmative-action.html [https://perma.cc/3G6K-VA9A].
[89] Id.
[90] 980 F. 3d 157 (1st Cir. 2020).
[91] Id., at 163; Students for Fair Admissions, Inc. v. Univ. of N.C., 567 F. Supp. 3d 580, 617 (M.D. N.C. 2021).
[92] Id.
[93] Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 397 F. Supp. 3d 126, 199 (D. Mass. 2019), aff’d, Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 980 F. 3d 157 (1st Cir. 2020).
[94] See Students for Fair Admissions, Inc., 397 F. Supp. 3d at 131.
[95] Id. at 163.
[96] Id. at 206.
[97] Id. at 204.
[98] Students for Fair Admissions, Inc., 980 F.3d 157 (1st Cir. 2020). See generally Students for Fair Admissions, Inc. v. Univ. of Tex. at Austin, No. 1:20-CV-763, 2021 WL 3145667 at *5 (W.D. Tex. July 26, 2021) (dismissing a similar claim challenging the University of Texas’ affirmative action programs in 2021). The federal court held that the student plaintiffs’ claims were barred because they were essentially the same claims as what was decided in Fisher v. Univ. of Tex. at Austin, 579 U.S. 365 (2016).
[99] Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 142 S. Ct. 895 (2022) (granting certiorari).
[100] Students for Fair Admissions, Inc. v. Univ. of N.C., 567 F. Supp. 3d 580 (M.D. N.C. 2021), cert. granted, 142 S. Ct. 896 (2022).
[101] Id. at 666.
[102] Id.
[103] Students for Fair Admissions, Inc.,142 S. Ct. 895.
[104] See Mark J. Drozdowski, Supreme Court Separates Harvard, UNC-Chapel Hill Affirmative Action Cases, Best Colls. (Aug. 1, 2022), https://www.bestcolleges.com/news/analysis/supreme-court-separates-harvard-unc-affirmative-action-cases [https://perma.cc/H3SU-3456].
[105] See Grutter v. Bollinger, 539 U.S. 306 (2003) (finding the law school’s race-conscious admission program at the University of Michigan to be constitutional); Gratz v. Bollinger, 539 U.S. 244, 275 (2003) (finding the undergraduate College of Literature, Science, and the Arts’ race-conscious admission program at the University of Michigan to be unconstitutional); Fisher II, 579 U.S. 365 (2016) (upholding the University of Texas’ affirmative action program).
[106] See Drozdowski, supra note 104.
[107] See, e.g., Green III, et al., supra note 26, at 170 (explaining how the Equal Protection Clause has rarely applied in the private school context).
[108] See Hannah Gross, The Case for Affirmative Action in College Admissions, Nat'l Educ. Ass'n (Oct. 31, 2022), https://www.nea.org/advocating-for-change/new-from-nea/case-affirmative-action-college-admissions [https://perma.cc/U94Z-5HRC]; Linda Jacobson, Experts Expect K-12 Ripple Effects as Supreme Court Considers Race in Admissions, The74 (Oct. 30, 2022), https://www.the74million.org/article/experts-expect-k-12-ripple-effects-as-supreme-court-considers-race-in-admissions [https://perma.cc/5AE6-Y8CF].
[109] See Jacobson, supra note 108.
[110] See Mark Keierleber, What the Harvard Affirmative Action Victory Means for Students Who Face ‘Endemic Inequalities’ in K-12 Schools, The74 (Oct. 2, 2019), https://www.the74million.org/what-the-harvard-affirmative-action-victory-means-for-students-who-face-endemic-inequalities-in-k-12-schools [https://perma.cc/T8SY-4QQD]; Aleks Ostojic Rushing & Mary Kate Mullen, Affirmative Action Again Under Fire in Admissions, Husch Blackwell: K-12 Legal Insights(Sept. 18, 2019), https://www.k-12legalinsights.com/2019/09/affirmative-action-again-under-fire-in-admissions [https://perma.cc/9PS8-XCAP]; Katrina Shakarian, Remaining Elite, Ensuring Diversity: Boston, Chicago & New York Wrestle With Admissions to Special High Schools, Gotham Gazette (Nov. 11, 2014), https://www.gothamgazette.com/index.php/government/ 5430-remaining-elite-ensuring-diversity-boston-chicago-a-new-york-wrestle-with-admissions-to-special-high-schools [https://perma.cc/2QMZ-TVRA].
[111] See Valerie Strauss, The Element of Suspense in Supreme Court’s 2023 Affirmative Action Ruling, Wash. Post (Jan. 16, 2023, 7:00 AM), https://www.washingtonpost.com/ education/2023/01/16/suspense-supreme-court-affirmative-action [https://perma.cc/KAP3-H8ZS]; John W. Borkowski, Aleks Ostojic Rushing, & Naomie Kweyu, Affirmative Action: The Possible K-12 Impacts of the Supreme Court Cases Involving Harvard and UNC, Husch Blackwell: Legal Insights(Nov. 15, 2022), https://www.k-12legalinsights.com/2022/11/affirmative-action-the-possible-k-12-impacts-of-the-supreme-court-cases-involving-harvard-and-unc [https://perma.cc/Y4JB-WW6F].
[112] See Coal. For TJ v. Fairfax Cnty. Sch. Bd., No. 1:21cv296, 2022 U.S. Dist. LEXIS 33684 (E.D. Va. Feb. 25, 2022).
[113] See Integratenyc Inc. v. The State of New York, No. 152743/2021, 2021 WL 2480060 (N.Y. Sup. Ct. June 17, 2021)
[114] See Sherice Sargent v. Sch. Dist. of Phila., 2022 U.S. Dist. LEXIS 140262 (E.D. Pa 2022).
[115] See Reeves & Schobert, supra note 3; Mezzacappa, supra note 5. See also, Vaznis, supra note 4.
[116] See, e.g., Fisher v. Univ. of Tex. at Austin, 579 U.S. 365, 389–437 (2016) (Thomas, J., Roberts, J., Alito, J., dissenting).
[117] See Erwin Chemerinsky, Opinion, If the Supreme Court Bans Affirmative Action, It Continues the U.S. Legacy of Racial Discrimination, L.A. Times (Jan. 25, 2022, 11:31 AM), https://www.latimes.com/opinion/story/2022-01-25/op-ed-supreme-court-bans-affirmative-action-discrimination [https://perma.cc/27DB-PLL5] (noting that it appears likely that affirmative action might be banned due to the current composition of the Court); Nicolas Lemann, The Supreme Court Appears Ready, Finally, to Defeat Affirmative Action, New Yorker (Jan. 27, 2022), https://www.newyorker.com/news/ daily-comment/the-supreme-court-appears-ready-finally-to-defeat-affirmative-action [https://perma.cc/82K3-ZNH3].
[118] Grutter v. Bollinger, 539 U.S. 306, 343 (2003).
[119] Evan Thomas, Why Sandra Day O’Connor Saved Affirmative Action, Atlantic (Mar. 19, 2019), https://www.theatlantic.com/ideas/archive/2019/03/how-sandra-day-oconnor-saved-affirmative-action/584215 [https://perma.cc/6XES-U5TL].
[120] See Chemerinsky, supra note 117; Lemann, supra note 117.
[121] See Richard Johnson & Desmond King, ‘Race was a Motivating Factor’: Re-Segregated Schools in the American States, 35 J. Int'l & Compar. Soc. Pol'y 75, 78 (2019); Ann Owens, Unequal Opportunity: School and Neighborhood Segregation in the USA, 12 Race and Soc. Probs. 29, 30 (2020); Erika K. Wilson, The New School Segregation, 102 Cornell L. Rev. 139, 144–45 (2016).
[122] Wilson, supra note 121, at 162–63.
[123] Fisher v. Univ. of Tex. at Austin, 579 U.S. 365 (2016).
[124] See Valerie Strauss, The Element of Suspense in Supreme Court’s 2023 Affirmative Action Ruling, Wash. Post (Jan. 16, 2023, 7:00 AM), https://www.washingtonpost.com/education/2023/01/16/suspense-supreme-court-affirmative-action [https://perma.cc/KAP3-H8ZS].
[125] See David Schultz, The Supreme Court Has Overturned Precedent Dozens of Times in the Past 60 Years, Including When It Struck Down Legal Segregation, Conversation (Sept. 20, 2021, 8:30 AM), https://theconversation.com/the-supreme-court-has-overturned-precedent-dozens-of-times-in-the-past-60-years-including-when-it-struck-down-legal-segregation-168052 [https://perma.cc/567X-A7BC].
