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Racial diversity in education has been an issue of critical importance for quite some time (e.g., Brown v. Board of Education). Despite efforts to promote integration, research has shown that racial inequalities persist. Courts play an important role in setting the parameters around policy levers or tools that are available to educational institutions to promote racial diversity. Notably, in June 2023, the U.S. Supreme Court issued a decision that restricted the ways universities can consider race in the admissions process in higher education (Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 2023). In this article, we provide a brief overview of this recent Supreme Court case, present relevant K–12 court cases, and provide resources for education leaders to provide further context on the status of the law.

Students for Fair Admissions (SFFA)

During the Supreme Court’s 2022–23 term, the Court was asked whether Harvard and the University of North Carolina’s (UNC) consideration of race as one of many factors that may tip the balance in rare cases in the undergraduate admissions process violates the Equal Protection Clause of the 14th Amendment. In assessing racial classifications, courts apply a test called strict scrutiny, which requires policies to be “narrowly tailored” to meet a “compelling state interest.” The universities’ asserted compelling state interests in diversity included benefits such as “training future leaders, acquiring new knowledge based on diverse outlooks, promoting a robust marketplace of ideas, and preparing engaged and productive citizens.”

In a 6–3 decision, the Court decided against UNC and Harvard, overturning decades of precedent. The Court was divided along ideological lines, with Chief Justice Roberts, and Justices Thomas, Alito, Gorsuch, Kavanaugh and Barrett making up the majority and Justices Kagan, Sotomayor, and Jackson dissenting. While the Supreme Court found Harvard and UNC’s race conscious admissions policies unconstitutional, it is worth noting that the Court stated: “nothing in [its] 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.”

There were multiple concurring and dissenting opinions. Excerpts from the dissenting opinions illustrate the contentious nature of the decision. For example, Justice Jackson’s dissenting opinion stated: “With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat. But deeming race irrelevant in law does not make it so in life.” Reflecting a similar sentiment, Justice Sotomayor’s dissenting opinion noted: “The majority’s vision of race neutrality will entrench racial segregation in higher education because racial inequality will persist so long as it is ignored.”

The SFFA decision will likely impact K–12 schools as well. In discussing the implications, we provide some context involving an earlier K–12 Supreme Court decision and then examine another recent legal challenge that may, in the near future, end up at the Supreme Court.

Context

There has only been one U.S. Supreme Court opinion that analyzed race-conscious admissions specifically within the K–12 context. The case involved public schools in Jefferson County, Kentucky and Seattle that sought to increase student body diversity and decrease racial isolation. To address these issues, the schools considered race among other factors in creating a student assignment plan. In Parents Involved in Community Schools v. Seattle School District No. 1 (PICS), the Court ruled that the schools’ policies were unconstitutional because they took an explicit account of race into consideration. In this 2007 plurality decision,1 Chief Justice Roberts wrote that the two school districts used a very limited notion of diversity when creating these plans. In Justice Kennedy’s concurring opinion, he also found the plans unconstitutional but asserted that the Constitution does not mandate that school districts accept racial isolation and observed that public schools may under certain circumstances consider race to ensure equal educational opportunities. In sum, PICS reminded school districts that they should at least first attempt to diversify their student bodies using race-neutral approaches before moving to the consideration of race.

The Supreme Court in SFFA left the constitutionality of race-neutral programs open. School districts will need to tread carefully, though. In SFFA, Justice Roberts wrote: “what cannot be done directly cannot be done indirectly” (p. 2176). For example, one K–12 school that adopted a race-neutral policy to achieve diversity was recently accused of using race-based proxies in its admissions program (Coal. for TJ v. Fairfax Cnty. Sch. Bd., 2023). We briefly discuss this case because it might be the next legal battle involving K–12 diversity plans.

Another Legal Challenge

School officials at selective K–12 schools have been grappling with the lack of racial diversity in classrooms. To address this pressing issue, some boards have reconsidered their admissions policies. For example, school officials rewrote their admissions policy to address the lack of diversity at Thomas Jefferson High School for Science and Technology (TJ), a highly selective public school in Alexandria, VA, near Washington D.C. Unlike what occurred at Harvard and UNC, this school adopted a race-neutral plan. To illustrate, prior to 2020, TJ had admissions requirements that included a standardized test, a certain grade-point average, completion of specific math courses, and teacher recommendation. To ensure the makeup of the student body better reflected the racial demographics of the county, the school board eliminated the test requirement and the $100 application fee. The board adopted a new plan where 1.5% of students from each eighth-grade class would be admitted, and it decided to consider “experience factors” (i.e., whether the child was a student at a middle school that TJ considered historically underrepresented, was an English learner, was receiving special education services, and was eligible for free and reduced-price lunch).

Prior to the new admissions policy, the racial composition of the school was 71.97% Asian American, 18.34% white, 3.05% Latinx, and 1.77% Black. After the new policy was implemented, Asian American enrollment dropped from about 70% to about 50% of the class. The plaintiffs involved in this lawsuit were Asian American parents and their children, among others, who either applied to the school or were planning to do so in the near future. They alleged an Equal Protection Clause violation and contended that the new admissions plan was intended to boost Black and Latinx representation at the expense of Asian students (Coal. for TJ v. Fairfax Cnty. Sch. Bd., 2022).

A federal district court judge ruled that TJ’s admissions policy violated the Equal Protection Clause and granted the plaintiffs’ motion for summary judgment. When reviewing the school board’s communications about the new admissions policy, the judge found that board members sought to specifically change the racial makeup of the student body. Some texts between school board members stated that the new proposal “will whiten our schools and kick [out] Asians. How is that achieving the goal of diversity?” Another board member replied, “I mean, there has been an anti-Asian feel underlying some of this, hate to say it, lol!” (Coal. for TJ v. Fairfax Cnty. Sch. Bd., 2023, p. 901). In May 2023, the Fourth Circuit Court of Appeals reversed the district court’s ruling and found that the school board had a legitimate interest in increasing diversity with its race-neutral plan (Coal. for TJ v. Fairfax Cnty. Sch. Bd., 2023). This decision was recently appealed to the U.S. Supreme Court. Similar legal challenges involving K–12 schools’ diversity plans have occurred in Massachusetts, New York, and Maryland. Indeed, race-neutral policies could be the next frontier in the admissions debate (Jacobson, 2023).

Recommended Resources

Below are resources that further contextualize the Supreme Court’s decision and the implications for K–12 schools. For example, leading scholars emphasize the heightened importance of integration efforts in K–12 schools (Siegel-Hawley & Frankenberg, 2023) and the need to resist interpreting and applying the SFFA decision in overly broad or expansive ways that restrict policies and practices that are still permissible (Racially Just Schools, 2023).

Maria M. Lewis, JD, PhD, is an associate professor of education at Pennsylvania State University. She teaches courses on education law and leadership for equity, diversity, and inclusion. Suzanne E. Eckes, JD, PhD, is the Susan S. Engeleiter Professor of Education Law, Policy, and Practice at the University of Wisconsin-Madison. She has published widely on education law-related topics.

References

Coal. for TJ v. Fairfax Cnty. Sch. Bd., 2022 U.S. Dist. LEXIS 33684
(E.D. Va., 2022).

Coal. for TJ v. Fairfax Cnty. Sch. Bd., 68 F.4th 864 (4th Cir. 2023).

Jacobson, L. (2023, July 20). After Harvard ruling, will admissions policies at elite K–12 schools be next? LA School Report. www.laschoolreport.com/after-harvard-ruling-will-admissions-policies-at-elite-k-12-schools-be-next/

Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007).

Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 143 S.Ct. 2141 (2023).

1. A plurality decision means that no single opinion received the support of the majority of the Court. Although a majority of the Court did not agree on the reasoning, a majority of the Court agreed on the outcome of the case.