II. The Development of the Law Upholding the Constitutionality of Race-Conscious Admissions Plans

The Supreme Court first considered the constitutionality of a university’s race-conscious admissions program in 1978 in Regents of University of California v. Bakke ⁹ and, in that case and the others that followed, ¹⁰ the Court judged each program against the demands of the Fourteenth Amendment of the United States Constitution and federal statutory law. The Fourteenth Amendment guarantees that “[n]o State shall … deny to any person within its jurisdiction the equal protection of the laws.” ¹¹ Following the Civil War, Congress enacted the Civil Rights Act of 1866 to protect African-Americans who had recently been freed from slavery, ¹² but that statute, written broadly, was intended to protect “all persons in the United States in their civil rights” and to apply to “every race and color.” ¹³ Almost one hundred years later, Congress enacted the Civil Rights Act of 1964 and, in Title VI of that statute extended protections to anyone of any race, color, or national origin participating in a federally funded program with these words: “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.” ¹⁴ Described by one Supreme Court Justice as “majestic in its sweep,” ¹⁵ these words mirror the guarantee of the Fourteenth Amendment and both extend protection to all persons regardless of race or ethnic group.Reference Zisk ¹⁶

Relying on this precedent, Allan Bakke a white male, sued the University of California Davis School of Medicine for rejecting twice his application for admission. Because the school reserved a pre-determined number of seats for minority applicants, the United States Supreme Court held in Bakke that the program violated the constitutional and statutory guarantees of equal protection. ¹⁷ Justice Powell, writing for a plurality of the Court, acknowledged that a quota system cannot stand, but that an admissions program may be constitutional as long as it considers race as part of a holistic consideration of an applicant’s traits, characteristics, and accomplishments. ¹⁸ Recognizing that race is “a single though important element” ¹⁹ of the characteristics of an individual, Powell highlighted Harvard College’s race-conscious admissions program as an example of one that would not violate the guarantee of equal protection. ²⁰ In contrast to the UC Davis School of Medicine’s setting aside a particular number of seats for minority applicants, Harvard had no pre-determined number of seats for minority applicants but, instead, considered race as part of a consideration of all aspects of the applicants, including “exceptional personal talents, unique work or service experience, leadership potential, maturity, demonstrated compassion, a history of overcoming disadvantage, ability to communicate with the poor, or other qualifications deemed important.” ²¹ Harvard’s admissions policies would be the subject of future challenges, which is discussed below.

Since 1978, when the Bakke case was decided, the Supreme Court has twice affirmed university admissions programs that allow for the consideration of the race of its applicants. ²² In both cases, the Court made clear that student body diversity is “a compelling interest.” ²³ According to the Court in Bakke, the interest in a diverse student body is compelling because it is “so essential to the quality of higher education.” ²⁴ As emphasized by the Court in 2016, enrolling a diverse student body is critical to higher education because it “promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races.” ²⁵ The Court also noted that “student body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society.” ²⁶ Notably, neither the Equal Protection Clause nor Title VI requires that the race of a university applicant be ignored. Instead, both guarantee that no one should be denied the “equal protection” of the law. ²⁷ To ensure this equal protection, the Supreme Court has suggested that the consideration of race is, in fact, necessary to place all applicants “on the same footing for consideration” in the admissions process. ²⁸ Critics of race-conscious college admissions plans argue that, instead of placing all applicants on the same footing, a consideration of race may tip the balance in favor of one applicant over another, equally qualified applicant. It is this critique that has led to the challenges currently pending against two universities that consider race as part of their holistic consideration of their applicants.

III. Current Challenges to Race-Conscious Admissions Plans

Despite the Court’s repeated affirmation of the constitutionality of race-conscious admissions programs, two major universities are currently facing challenges to their race-conscious plans. Harvard College and the University of North Carolina have been sued by a non-profit organization whose sole mission is to end any consideration of race in college admissions. ²⁹ The lawsuits allege that both Harvard and UNC are intentionally discriminating against Asian-American students, ³⁰ and the UNC suit alleges discrimination against White applicants as well. ³¹ In both of these lawsuits, Harvard and UNC have been challenged to justify their reliance on race, even though race is considered only as one part of a holistic consideration of its applicants’ traits and characteristics, consistent with what the Supreme Court has defined as constitutional. ³²

The lawsuit against Harvard went to trial in the fall of 2019, after years of discovery and the compilation of admissions data. During the three-week trial, the court heard testimony from Harvard admissions representatives, as well as representatives from other colleges and universities, prospective, current, and former students from Harvard and the other universities, and experts in the field of education and diversity. On September 30, 2019, the United States District Court for the District of Massachusetts issued a 130-page decision rejecting the challenge and upholding the constitutionality of Harvard’s race-conscious admissions program. ³³ That decision was recently upheld on appeal. ³⁴ The case against the University of North Carolina went to trial in November 2020, but the court has not yet issued a ruling. ³⁵

Following the lawsuits filed against Harvard and UNC, the United States Department of Justice under the Trump administration filed suit against Yale, alleging that “Yale’s oversized, standardless, intentional use of race” ³⁶ subjects Asian and White applicants “to unlawful discrimination on the ground of race.” ³⁷ Now under the direction of the Biden administration, the Justice Department has dropped the suit, but Yale’s response to the suit is instructive because it echoes the arguments made by Harvard and UNC in defense of the cases against them and reflects the arguments other universities have made in support of their own plans and those used by Harvard and UNC, as discussed in the following section. In response to the lawsuit against the college, Yale’s president, Peter Salovey, stated in no uncertain terms that Yale would not change its admissions policies as a result of “the filing of this baseless lawsuit.”Reference Salovey ³⁸ President Salovey was defiant in his insistence that Yale and its admissions officers would continue to follow the admissions plan they currently have in place and described that plan in words used by the Supreme Court in upholding race-conscious plans:

Finally, President Salovey made clear that at a time when “our country grapples with urgent questions about race and social justice,” he has “never been more certain that Yale’s approach to undergraduate admissions helps us to fulfill our mission to improve the world today and for future generations.” ⁴⁰

Many other universities and their constituencies have expressed a similar commitment to diversity and using race-conscious admissions programs to achieve it. The expressions of this commitment and the reasons for that commitment, especially for medical schools, recognize that an applicant’s race cannot be separated from who that applicant is and that to ignore an applicant’s race is to ignore the reality that race plays an important role in shaping an applicant’s perspective and experiences. These perspectives are reviewed in the following section.

IV. Why Universities Speak With “One Voice” to Protect Race-Conscious Plans and Why the Law Should Continue to Protect Them

Echoing Yale’s refusal to retreat from its consideration of every aspect of an applicant’s profile, including that applicant’s race, several universities filed supporting briefs in the Harvard case described above, arguing that diversity is of critical importance to the quality of the educational experience and that a consideration of race in the admissions process is a necessary ingredient in achieving that diversity. ⁴¹ In briefs filed in support of Harvard’s race-conscious plan when the lawsuit was first filed and, again, in support of the district court’s decision upholding that plan, a number of universities, including public and private schools, both large and small, emphasize “the profound importance of a diverse student body for their educational missions.” ⁴² These universities stress that a consideration of race “as one factor of many” allows them “to better understand each applicant and the contributions each applicant might make to the university environment.” ⁴³ They recognize that “it is artificial to consider an applicant’s experiences and perspectives while turning a blind eye to race. For many applicants their race has influenced, and will continue to influence, their experiences and perspectives.” ⁴⁴ Speaking with “one voice,” ⁴⁵ these universities agree that “race does matter” ⁴⁶ and that to acknowledge this is “to acknowledge forthrightly that for many reasons race continues to shape the backgrounds, perspectives, and experiences of many in our society,” including their students. ⁴⁷ Observing that race may be “an attribute an applicant might well consider integral to their identity and experience,” ⁴⁸ these universities insist that it would be “entirely antithetical … to ignore a facet of an applicant’s identity that, for a number of applicants, will play an essential role in shaping his or her outlook and experience.” ⁴⁹

The consideration of race is just as important for shaping medical school classes as it is for undergraduate institutions, and the Association of American Medical Colleges has recently said as much. In response to the Department of Justice’s challenge to Yale’s admissions policy, the AAMC acknowledged the importance of considering every aspect of an applicant’s personal traits and characteristics, noting: “Medical educators, in selecting future physicians, consider a wide range of pre-professional competencies, including service orientation, interpersonal communication skills, cultural competence, leadership, resilience, adaptability, and teamwork.” ⁵⁰ While it did not include the consideration of race in this list, the AAMC made clear that schools like Yale should continue to consider race as part of an “individualized holistic review” of every candidate for admission. ⁵¹ Without it, the AAMC concluded, “fewer students of color would have access to educational opportunities and that would be unfortunate for the school and for the country.” ⁵² The reason fewer students of color would have access to educational opportunities without a consideration of all of their traits, including race, is not because they lack the ability or aptitude to succeed, but instead because they have not had the chance to show that they do have the ability and aptitude to do so.

The AAMC also noted that the position taken by the Justice Department was offered to argue against the consideration of race in the Harvard case, but that argument “did not sway” the district court. ⁵³ Instead, that court acknowledged that it is “somewhat axiomatic at this point that diversity of all sorts, including racial diversity, is an important aspect of education.” ⁵⁴ To achieve that diversity, the court noted, Harvard proved that all of its “race-neutral” outreach efforts, of which there were many, “do not suffice.” ⁵⁵ To the contrary, according to the court, without a consideration of race, “racial diversity at Harvard would likely decline so precipitously that Harvard would be unable to offer students the diverse environment that it reasonably finds necessary to its mission.” ⁵⁶ The evidence in the University of North Carolina case suggests the same. Citing a study done by an independent researcher, it is the University’s position that “there is no race-blind alternative available to UNC that could be used, even in some practical combination with another alternative, would allow UNC to maintain its current level of academic preparedness and racial diversity.” ⁵⁷

The record in both the Harvard and UNC cases is replete with evidence that without a consideration of race in the admissions process, diversity will suffer. Even collegiate basketball coaches are concerned. In a brief filed in the Harvard case, they acknowledge that when “universities are prevented from cultivating diversity across the whole student body, the results can be disastrous.”Reference Auriemma, Boeheim, Chaney, Izzo, Krzyzewski, McCallie, Richardson, Self, Semrau, Smith, Vanderveer, Williams and Wright ⁵⁸ Relying on data from California, a state that is legally prohibited from considering race in its admissions decisions, the coaches and the associations that represent them note that the number of minority students admitted to the University of California at Los Angeles “plummeted” after the law banning the consideration of race went into effect. ⁵⁹ The President and Chancellors of the University of California provided proof in the 2016 Supreme Court case challenging the University of Texas’s admissions program that the “abandonment of race-conscious admissions policies resulted in an immediate and precipitous decline in the rates at which underrepresented-minority students applied to, were admitted to, and enrolled at UC.” ⁶⁰ As noted by the coaches in support of Harvard’s defense, the UCLA community was “shocked” by the paucity of black matriculants, and university administrators declared the situation a “crisis.” ⁶¹ In fact, the University’s provost acknowledged that “the quality of our education experience is absolutely affected, as well as our obligation to the citizens of this state.” ⁶²

Nowhere is racial diversity more important than in the delivery of health care because the evidence is clear that people of color have a higher degree of trust in physicians who look like them. ⁶³ As noted by the AAMC in a brief it filed in support of the University of Texas’s race-conscious plan in the 2016 Supreme Court case, “[s]tudies have shown that this bias exists and negatively impacts clinical decision making, which leads to negative treatment decisions and outcomes.” ⁶⁴ Moreover, physicians of every color will benefit from learning in a diverse environment because, according to the AAMC, “[r]esearch shows that when physicians understand more about the diverse cultures of their patients, physician decision-making is better informed and medical outcomes improve.” ⁶⁵ Thus, preventing medical educators from continuing to consider racial diversity would not merely impoverish the educational experience of all future doctors; it would diminish their ability “to render with understanding their vital service to humanity.” ⁶⁶

It is important to note that the law does not require universities to sacrifice academic excellence to achieve student body diversity or choose between the two. As the Supreme Court has repeatedly made clear, “the Equal Protection Clause does not force universities to choose between a diverse student body and a reputation for academic excellence.” ⁶⁷ Moreover, as made clear by the district court in the Harvard case, including race as part of its admissions consideration did not sacrifice Harvard’s “standards for academic excellence.” ⁶⁸ Observing that “academic excellence is necessary but not alone sufficient for admission to Harvard College,” the court reviewed the evidence submitted by the Admissions Office and stated unequivocally that the school “seeks to attract applicants who are exceptional across multiple dimensions or who demonstrate a truly unusual potential for scholarship through more than just standardized test scores or high school grades.” ⁶⁹

The same is true for medical schools. Noting that test scores and grades are “a significant barometer of merit,” the AAMC has acknowledged that they have never been independently determinative in medical school admissions.” ⁷⁰ As noted by the AAMC, “[m]edical educators agree that success in medical school requires more than academic competence; it also requires integrity, altruism, self-management, interpersonal and teamwork skills, among other characteristics.” ⁷¹ To find students with all of these characteristics, the AAMC states, just as Harvard proved to the satisfaction of the district court, there is “no proven substitute” than “this individualized, holistic review that may consider an applicant’s race and ethnicity along with all other factors that make up his or her background.” ⁷² By taking all of the characteristics of individual applicants into account, medical schools can thereby “produce a class of physicians best equipped to serve all of society.” ⁷³

The belief that the consideration of race benefits everyone is not universal. In fact, Justice Clarence Thomas has registered his disagreement with the Supreme Court’s decision to uphold race-conscious admissions programs in both cases in which the Court upheld race-conscious plans. Dissenting in the 2016 decision, Justice Thomas made very clear his position that race should not be considered at all, because, in his words, “a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.” ⁷⁴ He has also warned that considering the race of applicants “taints the accomplishments of all those who are admitted as a result of all those who are the same race as those admitted as a result of racial discrimination” as well as “the accomplishments of all those who are the same race as those admitted as racial discrimination.” ⁷⁵ According to Justice Thomas, when minority students graduate and “take positions in the highest places of government, industry, or academia, it is an open question … whether their skin color played a part in their advancement.” ⁷⁶ It is Justice Thomas’ position that “there is no evidence that [minority students] learn more at the University” to which they are admitted under a race-conscious admissions program “than they would have learned at other schools for which they were better prepared” and that “[i]ndeed, they may learn less.” ⁷⁷ Thus, he concluded, “the University’s racial tinkering harms the very people it claims to be helping.” ⁷⁸

Professor Richard Sander, at the University of California at Los Angeles School of Law, has expressed similar concerns about race-conscious admissions programs and describes this concern as the “mismatch” theory of affirmative action.Reference Rahl ⁷⁹ According to Professor Sander, who relies on empirical data indicating that there is a “very large disparity” between the “median” student and the student being admitted because he or she received a “large” preference based on race, “the credentials gap will hurt those the preferences are intended to help.”Reference Sander ⁸⁰ Although this theory is not without support, ⁸¹ many in the academic community have raised questions about whether there is any evidence to actually support it. ⁸² As noted in a brief filed in support of Harvard in the suit recently decided in Harvard’s favor, “the consensus of empirical scholars over the past seventeen years is that students of color attending universities with race-conscious admissions programs achieve higher grades, graduate at higher rates, and secure greater earnings than their peers at less selective schools.” ⁸³

There is another, more pragmatic reason why race must remain a component of any admissions decision. It simply cannot be ignored. As the AAMC observed, “ignoring race and ethnicity might not even be possible,” because “to read the file in a colorblind way, the admissions officer would likely have to ignore highly relevant information, without which the applicant’s personal statement might literally not make sense.” ⁸⁴ The late Justice Ginsburg understood this as well. In her words, if a university cannot openly include race as part of its admissions decisions, it “may resort to camouflage.” ⁸⁵ A university may, she suggested, “encourage applicants to write of their cultural traditions in the essays they submit, or to indicate whether English is their second language.” ⁸⁶ Indeed, fully disclosing the consideration of race “is preferable to achieving similar numbers through winks, nods, and disguises.” ⁸⁷ Justice Souter agreed, observing that “[e]qual protection cannot become an exercise in which the winners are the ones who hide the ball.” ⁸⁸

It should also be noted that medical schools require applicants, already deemed qualified, to interview before final admissions decisions are made. Indeed, as explained by the AAMC, “medical and other health professional schools have always considered and highly value personal interviews in order to learn what the applicant’s background would contribute to a culturally competent workforce.” ⁸⁹ The AAMC expressed concern that if medical schools could not consider an applicant’s race and ethnicity, it “would undermine their ability to assess the entirety of each individual’s background, thus frustrating the goal of best serving the public’s health.” ⁹⁰ Ultimately, and perhaps most importantly, according to the AAMC, “constraining a medical school’s ability to consider a student’s entire background would negatively impact not only the classroom, but also patients, who would be deprived of a pipeline of physicians better equipped through personal experience and a diverse learning environment to understand and serve patients from all walks of life.” ⁹¹

Despite the resounding support of many universities and their constituents for the continued consideration of race as one factor of many in admissions decisions and the Supreme Court precedent upholding the constitutionality of race-conscious programs, there is a very real possibility that when this issue reaches the Supreme Court again, and it is likely it will when the Harvard or UNC case makes its way through the federal court appeal process, the Court may overturn that precedent and ban any consideration of race in admission, given the current configuration of the Court. ⁹² It is, therefore, imperative for all institutions of higher education to consider this possibility as they advocate for protecting diversity in their classrooms and allowing race to be part of the consideration.