Reed Smith Client Alerts

Today, the U.S. Supreme Court published its opinion in the cases challenging University of Carolina (UNC) and Harvard’s race-conscious admissions practices. The decision came down as predicted: UNC and Harvard’s use of race as a factor in college and university admissions is unconstitutional.

In the coming months there will be many questions and this alert is meant to address some of the most pressing issues.

What does this mean for the current admissions cycle?

Opinions of the Supreme Court are immediately binding upon publication unless otherwise stated. Therefore, schools are currently required to comply with the decision. While most applications for the 2023 incoming class have been decided, and schools cannot be expected to go back in time to undo the collection of race demographics for applicants, the explicit consideration of race in any current or future admissions decisions will need to be revisited for decisions made from today forward. Admissions administrators should check in with counsel about complying with the Supreme Court’s guidance. Particularly, if your usual practice is granting an applicant a plus factor, or any other leg-up in the admissions process, because the applicant is from an underrepresented race, admissions administrators should revisit such practices immediately.

How do we support those in our community who are hurt and upset by this decision?

Colleges and universities are required to comply with Supreme Court decisions interpreting the Constitution. Institutions are also considered speakers with the First Amendment right to freedom of expression. Therefore, nothing prevents institutions from speaking out in an official capacity to support students, faculty, and staff affected by this decision. Further, the institution, in its official capacity, has the right to speak out against the contents of the decision as a matter of grave public concern. However, given the nuance of the Supreme Court’s opinion, communications should be measured so as to not commit the institution to an admissions policy or practice before an in-depth compliance review occurs.