No More Affirmative Action: What Does the Supreme Court’s Decision Mean for Independent Schools?

5 min

On June 29, 2023, in a set of consolidated cases (Students for Fair Admissions v. Presidents & Fellows of Harvard and Students for Fair Admissions v. University of North Carolina et al.), the Supreme Court effectively overturned decades-long precedent in holding that Harvard University’s and the University of North Carolina’s affirmative action programs and their use of race in college admissions violate Title VI of the Civil Rights Act of 1964 (as to Harvard and UNC) and the Equal Protection Clause of the 14th Amendment (as to UNC). Here, Venable’s Independent School Law team discusses the impact on independent schools and considerations for independent school admissions practices.

My Independent School Uses Race-Conscious Admissions – Do We Have to Change our Admissions Programs Now?

The Supreme Court’s decision does not have an immediate impact on most independent schools, given the laws that were at issue in the Harvard and UNC cases.

For Harvard, at issue was whether its admissions policies complied with Title VI of the Civil Rights of 1964. Title VI provides that no person be subjected to discrimination, on the grounds of race, from any program that receives federal financial assistance. Independent schools generally do not take federal financial assistance and, accordingly, the Harvard decision does not directly impact their admissions processes.

For UNC, at issue was whether its admissions policies complied with not only Title VI but also the Equal Protection Clause of the 14th Amendment, which provides that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” In 1952, the Court held in Brown v. Board of Education that the Equal Protection Clause of the 14th Amendment applied to public education, and that no state had the authority to use race as a factor in affording educational opportunities to its citizens. Accordingly, while the Equal Protection Clause governs public school systems as part of the state government, it does not govern independent schools.

Could Independent Schools Be Impacted in the Future?

While the Supreme Court’s decision does not directly impact independent schools, unless they receive federal funds, what it does establish is precedent for asserting, in other contexts, that consideration of race in the admissions process is unlawful discrimination. In essence, the decision lays a roadmap for future courts to follow, should policies permitting race-conscious admissions in independent schools be challenged under different legal frameworks.

While independent schools are not generally covered under Title VI or the Equal Protection Clause, there are additional laws governing race discrimination under which independent schools are governed. Should challenges to admissions processes be brought under the following laws, independent schools may be directly impacted:

  • 42 U.S.C. § 1981: Section 1981 grants all persons the equal right to make and enforce contracts. Section 1981 has been held to apply to the offer of admission and enrollment contracts. Specifically, in 1976, the Supreme Court’s decision in Runyon v. McCrary held that private schools that discriminate on the basis of race violated Section 1981.
  • Non-Profit Status and IRS Revenue Rulings and Procedures: The IRS issued revenue ruling 71-1447 in 1971, which provided that racial discrimination is contrary to public policy and, accordingly, a school must have a racial non-discrimination policy in order to be classified as a 501(c)(3) organization. Similarly, IRS Rev. Proc. 75-50 provides that schools must affirmatively show that they adopted a racial non-discrimination policy to the public and that they operate in accordance with that policy.
  • State and Local Human Rights Laws: In addition to federal law, many states and localities have adopted their own human rights laws. In certain instances, these laws expressly cover independent schools and expressly prohibit race discrimination.

In addition, and as previously discussed here, two federal district courts have held that an independent school’s 501(c)(3) status is considered federal financial assistance for the purpose of complying with Title IX, and the Fourth Circuit Court of Appeals is currently considering this issue. If upheld, the same analysis could be extended to require independent schools to similarly comply with Title VI.

What Should My Independent School Be Thinking About?

While there is no immediate impact on independent schools, it is still wise to be prepared for the possibility of future legal challenges over the use of race in the independent school admissions process. While independent schools have not necessarily adopted affirmative action programs, many schools have made a commitment to diversity in their admissions and other policies, and such measures could be the subject of future legal challenges.

Schools should review their current admissions and recruiting practices and policies to assess compliance with current legal guidance as well as potential legal scrutiny based on the Supreme Court decision. First, ensure that you have a non-discrimination statement in your employee and student handbooks, your Board has adopted the statement, and it appears on your website. In addition, consider ways in which you gather information about an applicant’s background to achieve diversity goals. While a formal affirmative action policy based on race is prohibited, the Court expressly provided in its ruling against UNC and Harvard that universities are not prohibited from considering “an applicant’s discussion of how race affected his or her life [in admissions essays], be it through discrimination, inspiration, or otherwise.” Consider how and whether modifications can be made to the admissions process, whether it be in essay prompts or interview prompts, to assess how an applicant’s race — or other characteristics — impacted their life.

It will be helpful to observe how higher educational institutions modify their policies. In recent days, many colleges and universities have issued statements reaffirming their commitment to attracting and retaining a diverse student population. It will be informative to monitor how they revisit and reassess their own processes to come into compliance with the Supreme Court’s decision. Independent schools may consider sending out similar messages to their communities, who may wonder whether the Supreme Court’s decision will impact their school community, and reconfirm their commitment to diversity, equity, inclusion, and belonging.

Venable’s Independent School Law team is available to advise independent schools on these issues. Independent schools with questions are encouraged to contact Caryn Pass, Grace Lee, Janice Gregerson, or Ashley Sykes for assistance.