U.S. Solicitor General Discourages Court Review of Harvard’s Limited Use of Race in Admissions

December 10, 2021

In June 2021, the U.S. Supreme Court invited the Solicitor General of the United States to brief the court on the United States’ position on Students for Fair Admissions, Inc. v. President and Fellows of Harvard College. The Office of the Solicitor General filed its amicus brief on behalf of the United States on Dec. 8, 2021, and encouraged the court to deny Students for Fair Admissions Inc.’s petition for a writ of certiorari.

In doing so, the United States argued that the district court and court of appeals properly ruled that Harvard’s limited consideration of race in undergraduate admissions is permissible under Supreme Court precedent, and that the Supreme Court should not revisit prior cases establishing well-relied-upon principles governing the issue.

In Grutter v. Bollinger, 539 U.S. 306 (2003), a case involving the University of Michigan’s law school, the Supreme Court held that the equal protection clause of the Constitution permits state colleges and universities to consider race in admissions decisions only if the considerations are narrowly tailored to advance a compelling interest such as the educational benefits that come from a diverse student body (otherwise known as the “strict scrutiny” standard). The court upheld the Grutter standard in Fisher v. University of Texas, 136 S. Ct. 2198 (2016). That same standard applies to nongovernment actors, such as private colleges and universities, that are subject to Title VI of the Civil Rights Act of 1964. Title VI prohibits discrimination based on race in programs — like Harvard’s — that receive federal financial assistance.

The district court in the Harvard case (and later, the court of appeals) made several key findings about Harvard’s admissions practices and why they passed the strict scrutiny standard, including that Harvard engages in a holistic review of its applicants and does not use racial quotas. Moreover, Harvard considers a variety of factors other than race — such as outstanding capacity for leadership, geographic diversity, legacy status (meaning, applicants with family members who attended the university), recruited athletes and socioeconomic status — when making admissions decisions. The district court also noted that Harvard carefully explored race-neutral admissions practices, and that none of the considered practices allowed Harvard to maintain its educational objectives. This framework — individual review of applications, not using racial quotas and continually evaluating how admissions practices might be revised to not include race — are essential components of an admissions program that satisfies the strict scrutiny standard.

Notably, the United States participated as an amicus in the lower courts in support of Students for Fair Admissions, Inc. under the prior administration, arguing that Harvard’s consideration of race was not narrowly tailored to serve a compelling interest.

The Supreme Court will now decide whether to hear the Harvard case, along with a similar case from a public institution. If the court grants certiorari, it will signal that the justices are willing to revisit the individual cases and possibly reconsider Supreme Court precedent on the use of race in admissions. If the court does not hear the cases, it is safe to assume the current strict scrutiny framework will continue to apply for some time.

If you have questions about Title VI compliance or the limited use of race in admissions, please contact Sarah Wake or Christina Egan.