In an effort to ensure meaningful diversity and expand opportunities for under-represented minorities in higher education, Harvard College considers race as one in deciding which students to admit. In 2014, a group called Students for Fair Admissions (SFFA) sued Harvard over its admissions policy, claiming that it unlawfully discriminated against Asian American applicants in favor of white applicants. SFFA ​​contends that any use of race in a public or private university’s holistic admissions policy violates the Fourteenth Amendment’s guarantee of equal protection of the laws and Title VI of the Civil Rights Act of 1964, which applies constitutional constraints on racial discrimination to private entities that accept federal financial assistance.

The district court ruled in favor of Harvard, concluding that its admissions process adheres to the requirements for race-based admissions outlined in the Supreme Court’s decision in Grutter v. Bollinger. The First Circuit affirmed the district court’s ruling, and SFFA asked the Supreme Court to review that decision. In 2022, the Supreme Court agreed to hear the case along with a similar challenge brought by SFFA against the University of North Carolina’s admissions policy.

On August 1, 2022, CAC filed an amicus curiae brief in support of Harvard and UNC. Our brief made three main points.

First, our brief explained that the text and history of the Fourteenth Amendment permit race-conscious measures to ensure equality of opportunity to all persons regardless of race. Far from establishing an absolute constitutional ban on the use of race by the government, the Framers of the Fourteenth Amendment rejected proposed constitutional language that would have precluded race-conscious measures designed to assist Black Americans in their transition to equal citizenship. Indeed, contemporaneous with the Fourteenth Amendment’s enactment, the Reconstruction Congress enacted a long list of race-conscious legislation intended to ensure equal opportunity regardless of race. The Framers thus recognized that race-conscious governmental measures were permissible to foster equality.

Second, our brief explained that Supreme Court precedent reflects the reconstruction Framers’ judgment that race-conscious measures are appropriate to ensure equal educational opportunity. In keeping with the Fourteenth Amendment’s text and history, the Supreme Court has consistently held that public colleges and universities may use race as a factor in selecting a diverse and academically accomplished student body, so long as they ensure individualized consideration of all persons regardless of race. In case after case, the Supreme Court has held that the use of race as one factor among many in selecting a rich, vibrant, and diverse student body can withstand the rigorous judicial review that is applied to judge the constitutionality of governmental racial classifications.

Lastly, our brief argued that the Supreme Court should reaffirm its decision in Grutter v. Bollinger, which upheld the use of race as one factor among many in university admissions. SFFA argues that the Equal Protection Clause requires strict colorblindness without exception and that public universities can never consider race at all. But this principle of absolute colorblindness is a historical invention that cannot be squared with the true history of the Fourteenth Amendment. As our brief demonstrated, the Framers of the Fourteenth Amendment rejected proposals to prohibit any and all use of racial classifications by the government. In fact, the Framers enacted a host of forward-looking, race-conscious measures to help fulfill the Amendment’s promise of equal opportunity regardless of race. In this respect, the Framers of the Fourteenth Amendment were the originators of affirmative action.