In 2023, the United States Supreme Court published its opinion in Students for Fair Admissions v. Harvard.[1] In his majority opinion, Chief Justice Roberts held that, “[e]liminating racial discrimination means eliminating all of it” and therefore “[o]ur constitutional history does not tolerate” the mathematical use of race in the university admissions context.[2] The Court’s decision seemingly marked the end of a philosophical battle spanning several decades regarding the permissibility of race-conscious admissions protocols.[3]
However, Chief Justice Roberts did not stop at Harvard’s policy specifically; instead, he reasoned that “universities may not simply establish through application essays or other means the regime we hold unlawful today.”[4] In other words, the Harvard holding also forbids admissions officials from using race in a less statistical, more facially neutral manner. But this raises an important question: how is such a holding policed? The Chief Justice acknowledges “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise,” but any admissions benefit granted to an applicant’s discussion “must be tied to that student’s courage and determination.”[5] This distinction is practically impossible to administrate; when a university admits an applicant who writes about how race has impacted their life, there is almost no way to discern whether admissions officials made the decision on the basis of “courage and determination” or on the basis of “skin color.”[6] Without outward mathematical considerations of race, like in Harvard, admissions officials can more easily hide their consideration of an applicant’s race.
As a result, opponents of affirmative action have not yet achieved their goal of ensuring race is never considered in admissions. Now, the same plaintiff-organization at the heart of Harvard—Students for Fair Admissions (“SFFA”)—is hoping to push the cause one step closer in one of its newest suits. At the heart of Students for Fair Admissions v. University of Texas at Austin is SFFA’s claim “that it is per se unlawful” for admissions officials to have access to applicants’ “racial check-box and aggregate racial data.”[7]
The case originated in 2021, with the initial stages of litigation involving a dispute over whether res judicata barred SFFA’s claims.[8] At first, SFFA challenged University of Texas at Austin’s (“UT Austin”) admissions policy which expressly considered race, similar to their challenge against Harvard.[9] For that reason, the District Court stayed UT Austin’s suit until the Court’s resolution in Harvard.[10] After the Harvard decision, the District Court rendered SFFA’s case against UT Austin moot because the university adopted a “new admissions policy not to consider race or ethnicity as a factor in the admissions process” and “created new processes to train and supervise its admissions officers and employees to ensure that they do not consider race or ethnicity as a factor in the admissions process.”[11]
The Fifth Circuit overturned the District Court’s decision in part, reasoning that SFFA’s claims were not entirely moot because UT Austin’s new admissions policy “grants full-time admissions officers unrestricted access to applicants’ self-reported check-box information” and “grants those admissions officers access to a dashboard of aggregated data showing numbers of persons who have applied to, been admitted to, and enrolled at UT [, including] aggregate percentages of race/ethnicity for each category: applied, admitted, and enrolled.”[12] Ultimately, the Fifth Circuit concluded: “UT has proffered no reason why admissions decisionmakers need that [racial] data or even access to it—and certainly not when they are making admissions decisions. With that access, admissions officials could easily—and discreetly—continue to employ racial preferences in admissions.”[13]
Effectively, SFFA now believes Harvard did not go far enough. Under this argument, it is not enough for universities to eschew the express use of race in admissions decisions. Instead, SFFA now asserts that admissions officials cannot know an applicant’s race, regardless of whether plaintiffs can prove officials discriminated based on that knowledge. There is a distinct probability this case will find its way to the Supreme Court, and thus it is important to consider the constitutional and policy arguments on both sides. Ultimately, a ruling in favor of SFFA would be inconsistent with the treatment of other Equal Protection claims and take an unnecessary step in further narrowing the admissions capabilities of universities.
On the one hand, the Fifth Circuit’s logic passes muster—there is seemingly no reason for admissions officials to possess racial data regarding applicants “when they are making admissions decisions.”[14] The most plausible explanation for such access is, as the Fifth Circuit described, continued use of race as an admissions factor in violation of Harvard.[15] Formulating any other purpose for the possession of such data is an arduous task.
However, Texas law requires UT Austin to request that applicants, “identify their race or ethnicity on applications, collect those responses, and report them to the Texas Higher Education Coordinating Board.”[16] Therefore, not only is it presently legal for UT Austin to possess racial data of applicants, but in fact the university is required to accumulate such racial data for purposes of reporting. With that said, and as the Fifth Circuit acknowledged, the university is not required to report such data to its admissions officers.[17]
More importantly, allowing SFFA to prevail would be a substantial departure from the typical nature of Equal Protection claims. A standard racial discrimination claim under the Equal Protection Clause for disparate treatment receives strict scrutiny.[18] However, disparate impact claims—where the alleged Equal Protection violation is based on racially discriminatory results rather than overt racial classification—receive rational basis review.[19] In such challenges, the onus is on the plaintiff to show that the disparate impact was “because of, not merely in spite of, its adverse impacts upon an identifiable group.”[20] Put differently, the plaintiff must prove the relevant state action was motivated by animus toward a protected class under the Equal Protection Clause. As a result, disparate impact challenges are extraordinarily difficult for plaintiffs to prevail under; absent private interactions amongst state actors suggesting racial animus as a motivation, plaintiffs cannot prevail.[21]
SFFA’s argument against UT Austin in this case can only be classed as a disparate impact challenge. As a result, UT Austin will almost certainly argue there is no evidence that admissions officials use the racial check-box data in admissions decisions. While admissions officials have access to the data, traditional Equal Protection jurisprudence says the onus is on SFFA to show that disparate admissions results are because of the use of race, not merely in spite of UT Austin’s racially neutral admissions policy. Additionally, Texas law mandates that UT Austin request such data, and is silent on the issue of whether admissions officials can have access to such data. If the Court restricts the university from possessing racial data, it is effectively asserting the school is still employing race as a factor in admissions, or at the very least that allowing access to the data is too great a constitutional risk to bear.
Again, such a ruling would depart from the general distinction between disparate treatment and disparate impact Equal Protection claims. The previous affirmative action cases before the Court involved disparate treatment and were therefore subjected to strict scrutiny, because the universities admittedly used race as a factor within their admissions scheme. Here, UT Austin has expressly disavowed the use of race in its admissions decisions—thus, the onus should be on SFFA to prove disparate impact and that admissions officials have used their access to the racial check-box data for the purpose of discriminating.
A ruling in favor of SFFA also has policy and logistical concerns. As recently as 2022, only twenty-five percent of Americans believed race should be a factor in admissions.[22] However, sixty-seven percent of Americans believed an applicant being the first in their family to go to college should be an admissions factor.[23] While being a first-generation college student is not a constitutionally protected status, a ruling in favor of SFFA still expands the risk of de-personing applicants by withdrawing knowledge of the characteristics that make applicants unique outside of grades and test scores. Additionally, in the digital age, admissions officials deadset on considering race in admissions can certainly uncover the race of applicants simply by searching their name. In fact, admissions officials already search applicants on social media in specific instances.[24] Prohibiting admissions officials from accessing racial data will not completely prevent the possibility of race as a factor.
SFFA already got their ruling under Harvard—universities cannot overtly use race in their admissions processes. Anything further would be an unnecessary distortion of Equal Protection jurisprudence.
[1] Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023).
[2] Id. at 206, 231. The term “mathematical” here refers to Justice Roberts’s primary issue with Harvard’s admissions methodology, whereby race is factored in “to make sure that [Harvard does] not hav[e] a dramatic drop-off in minority admissions from the prior class.” Id. at 194 (alteration in original) (citation modified).
[3] All the landmark affirmative action cases previously considered by the Court have involved the overt use of race in admissions to varying degrees. See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265,274–75 (1978) (UC Davis Medical School had a separate “special admissions program” for minority applicants, with a specified quota of sixteen students to come from this process); Grutter v. Bolinger, 539 U.S. 306, 316 (2003) (University of Michigan Law school admissions policy openly specified “racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African-Americans, Hispanics and Native Americans . . .”); Fisher v. Univ. of Tex. at Austin, 579 U.S. 365, 373 (2016) (UT Austin undergraduate admissions policy considered race as “one of the many ways in which [an] academically qualified individual might contribute to, and benefit from, the rich, diverse, and challenging educational environment of the University”) (citation modified).
[4] Harvard, 600 U.S. at 230.
[5] Id. at 230–31.
[6] Id. at 220, 231.
[7] Students for Fair Admissions v. Univ. of Tex. at Austin, 142 F.4th 819, 827 (5th Cir. 2025).
[8] See Students for Fair Admissions v. Univ. of Tex. at Austin, 2021 WL 3145667 at *12 (W.D. Tex. 2021) (“the court finds that SFFA’s claims are barred by res judicata . . .”), rev’d,37 F.4th 1078 (5th Cir. 2022).
[9] See id.
[10] See Students for Fair Admissions v. Univ. of Tex. at Austin, 2024 WL 3666177 at *2 (W.D. Tex. 2024).
[12] Students for Fair Admissions, 142 F.4th at 823.
[13] Id. at 827.
[14] Id.
[15] Id.
[16] Tex. Educ. Code § 51.4032 (2007).
[17] Students for Fair Admissions, 142 F.4th at 823.
[18] See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 222 (1995) (“[T]he Fourteenth Amendment requires strict scrutiny of all race-based action by state and local governments.”). For example, the infamous interracial marriage ban in Loving v. Virginia was subject to strict scrutiny because the statute at issue plainly involved racial classification. See Loving v. Virginia, 388 U.S. 1, 11 (1967) (“[T]he Equal Protection Clause demands that racial classifications . . . be subjected to the most rigid scrutiny, and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate.”) (citation modified).
[19] See Washington v. Davis,426 U.S. 229, 240 (1976) (“[T]he invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose.”).
[20] Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 258 (1979).
[21] See Reva B. Siegel, Equality Divided, 127 Harv. L. Rev. 1, 2–3 (2013) (“When minorities challenge laws of general application and argue that government has segregated or profiled on the basis of race, plaintiffs must show that government acted for a discriminatory purpose, a standard that doctrine has made extraordinarily difficult to satisfy.”) (emphasis added).
[22] Nikki Graf, Most Americans say colleges should not consider race or ethnicity in admissions, Pew Rsch. Ctr. (Feb. 25, 2019), https://www.pewresearch.org/short-reads/2019/02/25/most-americans-say-colleges-should-not-consider-race-or-ethnicity-in-admissions.
[23] Id.
[24] Christopher Rim, How Your Social Media Accounts Can Affect Your Ivy League Applications, Forbes (last updated Sep. 12, 2024), https://www.forbes.com/sites/christopherrim/2024/09/12/do-ivy-league-admissions-officers-check-applicants-social-media-what-students-need-to-know.