By: Guy Cheatham
Published on: January 27, 2025
I. Introduction
The United States Supreme Court’s ruling in Students for Fair Admissions v. President & Fellows of Harvard College (“SFFA”) marked a significant shift in the college admissions landscape.[1] By barring the use of race as a factor in admissions decisions, this ruling forced colleges and universities to rethink how they admit their incoming classes.[2] However, SFFA’s immediate impact on student demographics remains unclear as schools begin to implement alternative approaches to promote diversity in their student bodies without explicitly considering race.[3] Beyond higher education, SFFA raises questions about whether the end of the use of race-based affirmative action could extend to diversity, equity, and inclusion (“DEI”) programs in the corporate sector. This blog will explore SFFA’s effects on higher education admissions and the potential ripple effects of the ruling on workplace diversity initiatives.
II. Legal and Procedural Background
The Court’s decision in SFFA is largely a product of a decade-long movement led by litigant Edward Blum, who founded Students for Fair Admissions and played an instrumental role in Shelby County v. Holder; that case overturned Section 4 of the Voting Rights Act, which determined what states (typically those with a discriminatory past) must receive clearance from the Justice Department or a federal court in Washington before making changes to voting procedures.[4] Bloom first brought an affirmative action case before the Supreme Court in 2013 with Fisher v. University of Texas, which he lost.[5] Once Blum founded Students for Fair Admissions in 2014, he filed a lawsuit against Harvard College in the United States District Court for the District of Massachusetts, alleging Harvard’s consideration of race in admissions discriminated against Asian American applicants under Title VI, a federal law prohibiting discrimination based on race, color, or national origin in programs receiving federal financial assistance.[6] The ruling, not coming until 2019, went in favor of Harvard, finding its admissions practices did not violate Title VI.[7] The United States Court of Appeals for the First Circuit affirmed the District Court’s ruling, and the Supreme Court granted certiorari to hear the case.[8] While the ruling ended race-based affirmative action in higher education, the ruling did not settle the question of if and how far the principles articulated in SFFA will extend into sectors outside academia, such as governmental entities and private companies. Still, SFFA has emboldened conservative activist groups to challenge DEI initiatives outside higher education, suggesting that SFFA’s reach will be tested in realms outside academia for years to come.[9]
III. Immediate Effects on Enrollment
The Supreme Court’s ruling in SFFA is beginning shaping college admissions, with early data from the class of 2028 suggesting limited but varied impacts on student demographics.[10] Harvard, one of the institutions in the SFFA case, saw a minor decrease in Black student enrollment, while Hispanic student enrollment rose slightly for the Fall 2024 incoming class.[11] Notably, more students opted not to disclose their race, complicating student demographics tracking.[12] Massachusetts Institute of Technology (“MIT”) saw larger declines in Black student enrollment,[13] and Princeton University and Yale University noted no significant shifts.[14]
In terms of reporting, data from Common App showed little change in application patterns or selectivity among different racial groups.[15] Universities have adjusted to the SFFA-governed landscape by exploring race-neutral strategies in admissions processes, such as socio-economic background, geographic diversity, and personal adversity to create diverse classes while complying with SFFA.[16] For example, institutions like Pomona College are partnering with high schools serving low-income students and covering costs for student visits, with the aim to increase access for students from underrepresented backgrounds.[17] Other colleges and universities are responding by rethinking essay prompts for admission, developing essay questions that focus on SFFA’s ruling and how that influences prospective students’ goals for a college education.[18] Changes in admissions practices in response to SFFA are not the only factor influencing diversity on college and university campuses, as changes to the Free Application for Federal Student Aid (“FAFSA”) and renewed emphasis on standardized testing will influence diversity metrics in college admissions.[19]
IV. Effects Outside Higher Education
SFFA has inspired similar challenges beyond higher education, where corporate DEI policies are now under scrutiny. Conservative activist groups have filed lawsuits targeting corporate programs that, in their eyes, appear to favor specific racial or ethnic groups, arguing these initiatives violate anti-discrimination laws.[20]
One such high-profile case is American Alliance for Equal Rights v. Fearless Fund Management, where a venture capital firm providing grants to Black female entrepreneurs faced a lawsuit for allegedly discriminatory practices.[21] The Eleventh Circuit issued a preliminary injunction against Fearless Fund Management, barring it from offering grants under its current model.[22] Conversely, the Second Circuit dismissed a similar claim in Do No Harm v. Pfizer, where Pfizer’s fellowship program for students and professionals from underrepresented racial backgrounds withstood legal scrutiny.[23] The court ruled that Pfizer’s program did not violate federal antidiscrimination laws.[24] A third case, Alliance for Fair Board Recruitment v. Weber, involves an allegation that California Assembly Bill No. 979, which in part requires publicly-held corporations located in California to have a minimum number of directors from underrepresented backgrounds, violates the Equal Protection Clause and 42 U.S.C. § 1981.[25] The United States District Court for the Eastern District of California ruled in favor of the Alliance, finding the bill to include racial quotas that are facially invalid under Regents of University of California v. Bakke.[26] Though judicial responses to DEI programs following SFFA remain a bit inconsistent, there is a trend of increasing challenges to these programs in the wake of the SFFA decision, and lawyers and activists celebrating the end of race-based affirmative action are now eyeing employer programs deemed race-exclusive.[27]
V. Looking Ahead: A Murky Legal Future
The past year of litigation and data collection since SFFA leaves observers with significant uncertainty about its implications on student enrollment and initiatives outside academia. While SFFA’s immediate impact is being revealed in higher education, the ruling’s long-term effects on student diversity remain to be seen as colleges begin to experiment with race-neutral admissions. Furthermore, recent lawsuits against DEI programs in the private sector demonstrate that SFFA could be the beginning of a larger movement questioning the legality of race-conscious policies across various sectors.
Overall, the current legal landscape post-SFFA is uncertain, leaving institutions and organizations in a bit of a gray area as they carefully navigate policies related to diversity, equity, and inclusion-related programs. The SFFA decision may ultimately serve as a landmark not just for admissions, but as a turning point for DEI policies nationwide.
[1] See Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 182 (2023) (holding that Harvard and the University of North Carolina’s (“UNC”) admissions programs violate the Equal Protection Clause of the Fourteenth Amendment).
[2] See id. at 216 (stating that Harvard and UNC’s admissions systems fail to comply with the commands of the Equal Protection Clause).
[3] See Carolyn Jones & Mikhail Zinshteyn, How College Admissions Are Changing After the End of Affirmative Action, Long Beach Post (Nov. 5, 2023), https://lbpost.com/news/how-college-admissions-are-changing-after-the-end-of-affirmative-action/ (discussing how California colleges are rethinking recruitment efforts in light of the end of race-based affirmative action in college admissions); Sarah Wood, What the Supreme Court’s Affirmative Action Ban Means for College Admissions, U.S. News & World Rep. (Aug. 8, 2024, 9:22 AM), https://www.usnews.com/education/best-colleges/applying/articles/how-does-affirmative-action-affect-college-admissions (showing methods including automatically admitting applicants in the top ten percent of their high school class, focusing on recruitment in certain geographical areas, and investing more in need-based grants).
[4] Adam Liptak, Supreme Court Invalidates Key Part of Voting Rights Act, N.Y. Times (June 25, 2013), https://www.nytimes.com/2013/06/26/us/supreme-court-ruling.html; Lulu Garcia-Navarro, He Worked for Years to Overturn Affirmative Action and Finally Won. He’s Not Done., N.Y. Times (July 8, 2023), https://www.nytimes.com/2023/07/08/us/edward-blum-affirmative-action-race.html.; Shelby Cnty. v. Holder, 570 U.S. 529, 529–30 (2013).
[5] Fisher v. Univ. of Tex., 570 U.S. 297 (2013).
[6] Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 397 F. Supp. 3d 126 (D. Mass. 2019), aff’d sub nom. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 980 F.3d 157 (1st Cir. 2020), rev’d, 600 U.S. 181 (2023).
[7] Id.
[8] Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 980 F.3d 157 (1st Cir. 2020), rev’d, 600 U.S. 181 (2023).
[9] Garcia-Navarro, supra note 4.
[10] See John S. Rosenberg, Affirmative Action’s End, Admissions After Affirmative Action, Harv. Mag. (Sept. 14, 2024), https://www.harvardmagazine.com/2024/09/admissions-after-affirmative-action (noting that while the MIT Class of 2028 saw a notable decrease in representation among Black, Hispanic, and Indigenous students, Duke University and the University of Virginia saw increased representation in these categories).
[11] See Theara Coleman, Has College Admissions Data Changed Post-Affirmative Action?, The Week (Sept. 13, 2024), https://theweek.com/education/college-admissions-data-affirmative-action (stating that Black student representation in the class of 2028 decreased by four percentage points compared to the class of 2027).
[12] See id. (noting that the share of students not disclosing their race or ethnicity doubled to eight percent since last year).
[13] See id. (sharing that Black student representation in MIT’s incoming freshman class dropped eight points from the thirteen percent average for the previous four years).
[14] See id. (noting that Yale and Princeton did not see changes in Black and African American student enrollment, but each saw a decreased share of Asian American student enrollment).
[15] Julia Pasette-Seamon, New Data: Were Post-Affirmative Action Fears Overblown?, Whiteboard Advisors (June 2024), https://whiteboardadvisors.com/new-data-were-post-affirmative-action-fears-overblown/.
[16] Jones & Zinshteyn, supra note 3.
[17] See id. (detailing Pomona’s admissions efforts post-affirmative action by discussing the college’s efforts to expand half-day visits and invite counselors from more than 460 colleges in the region).
[18] See Isabel Meyers, et. al., Who Gets In? Affirmative Action Ban Complicates College Admissions, The Emancipator (Oct. 7, 2024), https://theemancipator.org/2024/10/07/topics/education/who-gets-in-affirmative-action-ban-complicates-college-admissions/ (discussing Sarah Lawrence College’s newest supplemental essay prompt in light of SFFA, which asks the following: “Drawing upon examples from your life, a quality of your character, and/or a unique ability you possess, describe how you believe your goals for a college education might be impacted, influenced, or affected by the [C]ourt’s decision.”).
[19] See Pasette-Seamon, supra note 15 (quoting Common App’s CEO, Jenny Rickard, who stressed during a briefing of a recent Common App report that the recent FAFSA rollout debacle and return of standardized testing could eclipse race-based admission as the most acute challenge facing students and families).
[20] See Am. All. for Equal Rts. v. Fearless Fund Mgmt., LLC, 103 F.4th 765, 771 (11th Cir. 2024) (alleging that Fearless Fund’s grant contest, which focuses on businesses owned by Black women, excludes non-Black applicants from eligibility because of their race); Do No Harm v. Pfizer Inc., 96 F.4th 106, 110–11 (2d Cir. 2024) (alleging that Pfizer’s Fellowship, which contained a “requirement” that applicants “meet the program’s goals increasing the pipeline for Black/African American, Latino/Hispanic and Native Americans. . .” excluded white and Asian American applicants).
[21] Fearless Fund, 103 F.4th at 771.
[22] See id. at 780 (reasoning that the structure of Fearless Fund’s contest causes irreparable harm to Alliance members who are excluded based on race).
[23] See Pfizer, 96 F.4th at 110–11 (discussing plaintiff’s allegations that Pfizer’s program excluded white and Asian American applicants).
[24] See id. at 119 (reasoning that since Do No Harm lacked standing in this case, dismissal of its claims was appropriate).
[25] All. for Fair Bd. Recruitment v. Weber, No. 2:21-CV-01951-JAM-AC, 2023 WL 3481146, at *2 (E.D. Cal. May 15, 2023).
[26] Id.; Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 307 (1978) (disapproving a classification aiding persons in victimized groups at the expense of other innocent individuals absent any findings of constitutional or statutory violations).
[27] Garcia-Navarro, supra note 4.