Some History

In 1978, a plurality of the U.S. Supreme Court ruled in Regents of the University of California v. Bakke that the use of racial quotas in the admissions program of any institution of higher education is unconstitutional as a violation of the Equal Protection Clause; within this decision, they also laid the foundation for constitutionally acceptable race-conscious admission policies, stating that diversity within a student body is “a compelling interest” and that in “an admissions program, race or ethnic background may be deemed a ‘plus’” factor, insofar that it does not completely determine the acceptance or rejection of an applicant.

Two cases in 2003 built further upon this legal precedent, Gratz v. Bollinger and Grutter v. Bollinger. Both cases dealt with the admissions practices of the University of Michigan—Ann Arbor, with Gratz pertaining to the undergraduate school and Grutter the law school. The undergraduate admissions system for the University of Michigan used a process in which each applicant needed a total of one hundred points to be offered admission to the school; points were awarded based on a variety of accomplishments, talents, and characteristics. In the interest of creating a diverse student body to achieve educational benefits, they automatically awarded every applicant of an underrepresented minority twenty points. In contrast, the University of Michigan Law School conducted individualized and holistic review of each of their applicants, considering a variety of “plus” factors in addition to race. The Court ruled against the practices of the undergraduate school and affirmed those of the law school. As a result, holistic race-conscious admission programs similar to the program reviewed in Grutter were explicitly authorized, although all uses of racial classifications are subject to the “strict scrutiny” standard for racial classifications under the Equal Protection Clause.

There are two parts to the “strict scrutiny” standard: the goal of the government must be a “compelling interest” and the means used to achieve it must be “narrowly tailored.” Both prongs of this standard must be satisfied for the racial classification to survive a challenge to a program’s constitutionality. A compelling interest refers to “whether the goal the policy is trying to achieve is sufficiently important to justify a particular use of specific classification” and the narrow tailoring test is “whether the policy achieves its goals with as little negative effect as possible on other groups.” Since Bakke, diversity within a student body has recognized as a compelling interest; the question in many lawsuits regarding race-conscious admissions is whether an institution’s policies are narrowly tailored enough to avoid creating unfair advantages for certain applicants.

Middlebury College, along with 32 other small, highly selective, private colleges filed an amicus curiae brief supporting Harvard College’s defense in the SFFA v. Harvard case. Middlebury was not a party in the lawsuit and was not directly involved. Instead, “amicus curiae” briefs reflect the experience and arguments of “friends of the Court” and are common in Supreme Court cases, which have national impact. Middlebury, along with peer institutions, argued that the overturning of Grutter would be detrimental to admissions programs of institutions of higher education, especially “small private colleges that have applied Grutter faithfully and successfully for nearly twenty years.” The group of amici colleges emphasized the many educational benefits that a diverse student body creates, including how it “meaningfully improves learning experiences, complex thinking, and non-cognitive abilities,” and “generates pedagogical innovations and decreases prejudice.” Therefore, Middlebury College and similar institutions argued that there is still a substantial and sufficient compelling educational interest in creating and maintaining diversity within their institutions. Furthermore, “these benefits are especially pronounced at liberal arts colleges and small universities, where smaller class sizes lead to greater engagement among diverse students.” The brief expressed that the colleges have “repeatedly concluded that race cannot be excluded entirely from admissions considerations if they are to enroll the diverse classes critical to their educational missions.” The brief noted that since there currently exist no fully effective race-neutral alternatives to this end, amici’s use of race in their admissions policies are indeed necessary and thus ought to be seen as narrowly tailored by the Court.

Nearly 100 other amicus briefs were filed in the SFFA v. Harvard and UNC cases by various stakeholders in the community from public universities to government agencies to private corporations.  A guide to the amicus briefs in the affirmative-action cases found on SCOTUSblog outlines the major amicus briefs and categorizes them by argument.