By: Niki Iman Saleh
November 3, 2022
The Supreme Court (“the Court”) will address the constitutionality of affirmative action this Fall term in the case of Students for Fair Admissions v. President and Fellows of Harvard College (“Students for Fair Admissions”). The case challenges Grutter v. Bollinger, an affirmative action case where the Court held that the University of Michigan Law School’s use of racial preferences in their admissions process did not violate the Equal Protection Clause of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964 (“Title VI), or Section 1981. The plaintiffs in Students for Fair Admissions argue that Harvard’s race-conscious admissions policy discriminates against Asian American applicants in violation of Title VI – namely, that Asian Americans are much less likely to be admitted to Harvard than their Black, Latinx, or white counterparts. The Court will address two questions in Students for Fair Admissions. First, whether Grutter should be overruled such that institutions of higher education cannot use race as a factor in admissions. Second, whether Harvard violated Title VI by penalizing Asian American applicants, engaging in racial balancing, overemphasizing race, and rejecting workable race-neutral alternatives.
Title VI states that “[n]o 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.” The purpose of Title VI is to ensure that public funds are not spent in a way that encourages, subsidizes, or results in discrimination on the basis of race, color, or national origin. Protections under Title VI are “coextensive,” with the Equal Protection Clause such that, in the context of higher education admissions, “the contours of Title VI claims are largely shaped by the Equal Protection Clause.” Title VI prohibits a university — like Harvard, which accepts federal funding and uses race in making admissions decisions — from considering race in its admissions process “unless the admissions process can withstand strict scrutiny.” Strict scrutiny requires that any race-based classifications a university, like Harvard, uses in their admissions process is narrowly tailored to further a compelling interest.
Title VI and affirmative action are both critical laws to uphold — the former protecting marginalized or under-represented groups against discrimination and the latter a mechanism for rectifying historical inequalities in educational and vocational accessibility for marginalized groups. Affirmative action policies allow universities to consider race and ethnicity when reviewing applications by looking beyond test scores or GPAs and looking at an applicant as a whole. In arguing that Harvard’s race-conscious admissions policies violate the Title VI rights of Asian American applicants, the plaintiffs in Students for Fair Admissions open the door for a much more troubling alternative: race or color-blind admissions processes in higher education. Immigrant students of color rely on affirmative action policies to access an even-playing field in the context of higher education. Holistic reviews as a component of affirmative action are critical for low-income immigrant students of color who lack the privileges many of their United States citizen peers experience like private school education or SAT prep courses. Additionally, many immigrant students of color face language barriers and racist stigmas throughout their pre-undergraduate studies that their citizen peers never have to experience or overcome. Affirmative action is a tool that can help prevent the dehumanizing “shadow population” of immigrant students that the Court warned against in Plyer v. Doe.
Pitting Title VI against affirmative action fails to protect immigrant students of color and erodes the purpose of Title VI altogether. Affirmative action provides a preventative mechanism for universities, particularly publicly funded universities, to preserve the sanctity of Title VI by ensuring their admissions practices do not enable discrimination on the basis of race, color, or national origin. Courts have interpreted Title VI discrimination on the basis of national origin to include language-based discrimination. Courts have interpreted language-based discrimination to categorically equate to discrimination on the basis of national origin because the effect of the discrimination is quite similar.Namely, given that a person’s primary or native language is closely tied to the geographic place that person or their family originates from, the effect of discriminating on the basis of language is similar to discriminating on the basis of national origin. For example, courts have found a plaintiffs’ Spanish-speaking characteristics reflect their national origin such that the plaintiffs could sufficiently plead a claim of national origin discrimination. Failing to use race and ethnic-conscious based admissions processes that accommodate factors, such as immigrant status and how a student’s background was shaped by such status, will result in many immigrant students of color facing inevitable discrimination on the basis of language and, by extension, national origin. Thus, to maintain the sanctity of Title VI and ensure equal educational access for immigrant students of color, the Court must uphold Grutter.
 See Amy Howe, Affirmative Action Up First in November Argument Calendar, SCOTUS Blog (Aug. 3, 2022, 2:12 PM), https://www.scotusblog.com/2022/08/affirmative-action-cases-up-first-in-november-argument-calendar/ (explaining that the two cases will now be heard separately to allow Justice Jackson, who recently served on Harvard’s board of overseers, to participate in the University of North Carolina case).
 See Grutter v. Bollinger, 593 U.S. 306, 307, 343 (2003) (concluding that the “Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body is not prohibited by the Equal Protection Clause, Title VI, or § 1981”); see also 42 U.S.C. § 1981(a) (stating that all persons within the United States have the same right “to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions . . .”).
 See Students for Fair Admissions v. President & Fellows of Harvard Coll., 980 F.3d 157, 203 (1st Cir. 2020); Amy Howe, Court Will hear Challenges to Affirmative Action at Harvard and University of North Carolina, SCOTUS Blog (Jan. 24, 2022, 11:44 AM), https://www.scotusblog.com/2022/01/court-will-hear-challenges-to-affirmative-action-at-harvard-and-university-of-north-carolina/.
 Student for Fair Admissions, 980 F.3d at 203.
 42 U.S.C. § 2000d.
 See Title VI Legal Manual, Dep’t of Just. (Apr. 22, 2021), https://www.justice.gov/crt/fcs/T6manual2.
 See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 287 (1978); Students for Fair Admissions v. President & Fellows of Harvard College, 397 F. Supp. 3d 126, 189 (D. Mass. 2019); Alexander v. Sandoval, 532 U.S. 275, 280 (2001).
 Fisher v. University of Texas at Austin, 570 U.S. 297, 309 (2013).
 See Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266, 270-71 (1977).
 See Connor Maxwell & Sara Garcia, 5 Reasons to Support Affirmative Action in College Admissions, American Progress (Oct. 1, 2019), https://www.americanprogress.org/article/5-reasons-support-affirmative-action-college-admissions/.
 See Andrew J. Fuligni, Melissa Witkow & Carla Garcia, Ethnic Identity and the Academic Adjustment of Adolescents from Mexican, Chinese, and European Backgrounds, 41 Developmental Psychology 799, 809 (2005).
 Black non-immigrant students also rely on affirmative action. This blog, however, simply focuses on immigrant populations.
 See The Resilience of Students with an Immigrant Background: Factors That Shape Well-Being, OECD (Mar. 19, 2018), https://www.oecd-ilibrary.org/docserver/9789264292093-8-en.pdf?expires=1660519170&id=id&accname=guest&checksum=18E5523820973FA2F0270B04F90FB451.
 See Plyer v. Doe, 457 U.S. 202, 218 (1982) (reasoning that resources that could be saved from excluding undocumented children from public schools were outweighed by the harms imposed on our greater society from denying them an education).
 See Lau v. Nichols, 414 U.S. 563, 568 (1974); Dep’t of Health, Education, and Welfare, Identification of Discrimination and Denial of Services on the Basis of National Origin, 35 Fed. Reg. 11, 595 (July 18, 1970).
 See Lau v. Nichols, 414 U.S. 563, 568 (1974).
 See also Language Discrimination: Your Legal Rights, Legal Aid at Work (2022), https://legalaidatwork.org/factsheet/language-discrimination/.
 Almendares v. Palmer, No. 3:00-CV-7524, 2002 WL 31730963 at *1 (N.D. Ohio Dec. 3, 2002).