In 1978, the United States Supreme Court heard the first of several cases relating to affirmative action in higher education. Specifically, in Regents of the University of California v. Bakke, 438 U.S. 265 (1978), the Court held that race could be considered as one factor in college admissions, but that the university’s set aside program in that case was illegal. In subsequent years, the Court heard other significant cases, such as Grutter v. Bollinger, 539 U.S. 306 (2003), Gratz v. Bollinger, 539 U.S. 244 (2003), Fisher v University of Texas, 570 U.S. 297 (2013)(commonly known as Fisher I), and Fischer v. University of Texas, 579 U.S. 365 (2016)(commonly known as Fischer II). In each of those cases, the plaintiffs challenged the constitutionality of the use of race in various admissions programs. While certain programs didn’t pass legal muster, the Court repeatedly reaffirmed the consideration of race as a positive factor in the admissions process as a part of a narrowly tailored program designed to foster educational diversity.
In Fall 2022, the U.S. Supreme Court heard two new cases on the use of race in admissions. One suit accused Harvard University, a private institution, of violating Title VI of the Civil Rights Act of 1964, which bars discrimination based on race, color, or national origin in any program or activity receiving federal funding. The other accused the University of North Carolina, a public institution, of violating the Fourteenth Amendment’s Equal Protection Clause.
On June 29, 2023, the U.S. Supreme Court issued a combined decision in Students for Fair Admissions v. University of North Carolina and Students for Fair Admissions v. Harvard. The Court’s decision may be found here: Students for Fair Admission June 2023 Decision. In this decision, the majority ruled that Harvard and UNC’s admissions programs violated federal law. Although the Court did not expressly overrule its past decisions, this decision significantly undercuts that precedent and therefore any institution’s ability to use race in its admissions decisions. UWM has modified its admissions policies and practices to comply with this decision.