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In a long-anticipated decision, the U.S. Supreme Court ruled Thursday against university policies that take race into account for admissions, in two cases that some legal experts say will create roadblocks for foundations and charities that work to promote diversity in their grant-making and hiring decisions.
In a 6-3 decision, the court ruled in two combined cases, Students for Fair Admissions v. Harvard and the University of North Carolina, that both universities’ admissions policies violate the equal-protection clause of the 14th Amendment.
“Eliminating racial discrimination means eliminating all of it,” wrote Chief Justice John Roberts in the majority decision.
He continued, writing that the colleges’ admissions programs “fail to articulate a meaningful connection between the means they employ and the goals they pursue. To achieve the educational benefits of diversity, respondents measure the racial composition of their classes using racial categories that are plainly overbroad … arbitrary or undefined … or underinclusive.”
While the case deals directly with the role race can play in accepting applicants to colleges, some foundations are bracing for lawsuits challenging their diversity efforts.
To that end, the Hewlett Foundation commissioned a study this spring that laid out three possibilities grant makers face, including that the justice would rule that:
- Race could not be used as a “plus-factor” in college admissions but that race-neutral proxies for race, such as family income, could be used.
- Race-neutral factors used as a stand-in for race could be used in admissions decisions.
- No efforts to achieve racial diversity are legal under the Constitution.
In his majority opinion, Justice Roberts took the second approach, which would prohibit direct consideration of race in accepting an applicant but would allow an institution to consider how an applicant’s race has affected an applicant’s life “so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university.”
The Hewlett-commissioned memo warned nonprofits that the ruling would place their diversity efforts in legal jeopardy.
“We expect that in the near future, the decision will be applied in a manner that substantially alters the existing legal framework for discrimination claims more broadly,” the memo states.
The decision could curtail much of the work nonprofits do to promote diversity, wrote Akilah Watkins, president of nonprofit and philanthropy membership group Independent Sector, in an email.
“It could touch how we hire, build our boards, make funding decisions, and design and deliver our programs,” she said.
Watkins said nonprofits need to study the full implications of the ruling before making any changes in their work.
Kathleen Enright, president of the Council on Foundations, said she was disappointed by the court’s ruling. In an email, she said the council will work to help its members support diversity “within the confines of the law.”
“Because of America’s history of racial inequities, among other forms of oppression, supporting racial diversity has been a key part of philanthropy’s work toward the greater good,” she wrote.
Devon Westhill, president and general counsel of the Center for Equal Opportunity, an advocacy group that promotes “colorblind equal opportunity” and filed a friend of the court brief in support of the student group’s position, called the decision historic. He said the majority opinion puts “teeth” back into the 14th Amendment of the U.S. Constitution, which gives all citizens equal protection under the law.
Westhill pointed to a concurring opinion by Justice Neil Gorsuch that suggests courts should use Thursday’s ruling to “correct course” in its treatment of Title VI of the 1964 Civil Rights Act, which prohibits discrimination on the basis of race, color, or national origin in any program that receives federal assistance. Gorsuch’s opinion, Westhill wrote in an email, suggests the ripple effect of the decision will be felt well beyond the university admissions process.
“Unequivocally, the government cannot discriminate against you because of your race,” he said.
Fears that the decision will place diversity efforts at foundations in peril are overblown, said Marita Etcubañez, vice president of strategic initiatives at Asian Americans Advancing Justice, an Asian American civil-rights organization, who spoke before the decision was announced.
Following big Supreme Court decisions, the winning side always tries to expand the importance of their win, she said. She argued that the organizations that pursued the ban on affirmative action were driven by a broader desire to establish race-blind standards well beyond university admissions.
Philanthropy leaders, she said, should not step back from their efforts to promote diversity, equity, and inclusion out of an “amorphous fear” of litigation following today’s ruling.
“Concerns that this could spill over into corporate America and into philanthropy are misplaced,” she said. “This is only about admissions.”
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