Quick Hits
- The Third Circuit explained that challenges to diversity efforts must prove both a discriminatory purpose and impact to trigger strict scrutiny and found sufficient evidence that the district’s policy aimed to alter the racial makeup of its selective high schools.
- The court emphasized that it is unconstitutional for schools to seek specific racial percentages or racial balancing, and that even race-neutral criteria like zip codes can be scrutinized if motivated by racial equity goals.
- The decision deepens a circuit split on impact analysis, potentially inviting Supreme Court review.
In deciding which students would attend the district’s selective high schools, the district considered a variety of factors, including grades, attendance, and zip code. Students in certain zip codes (which were historically underrepresented in the selective high school population) who met other requirements were automatically admitted to the school of their choice. Qualifying students in other zip codes were placed in a lottery for the remaining seats not taken by those in the favored zip codes.
Relying on the 2023 decision of the Supreme Court of the United States in Students for Fair Admissions v. Harvard College (SFFA decision), the court explained that evenhandedly-applied, facially-neutral policies may be unconstitutional when both discriminatory purpose and impact are present. The Third Circuit held that challengers must prove both elements to trigger strict scrutiny.
The court’s proxy analysis turned on three factors: (1) the demographic composition of the preferred zip codes; (2) the determinative nature of the benefit, such as an automatic admission versus a marginal preference; and (3) the connection between the mechanism and the stated racial-proportionality goals. The court reaffirmed that facial neutrality does not protect a classification that functions as a proxy for race.
The decision deepens an existing circuit split on how to measure discriminatory impact. The First Circuit and Fourth Circuit have adopted more restrictive impact frameworks, requiring “success rate” comparisons or holding that a group’s continued “over-representation” negates impact. The Second Circuit, by contrast, recognized that individualized harm can satisfy the impact inquiry. The Third Circuit expressly aligned with the Second Circuit’s approach, holding that discriminatory impact may be established through “before and after” comparisons of admissions data and individualized harm. The court rejected the view that a group’s continued “over-representation” automatically negates a finding of impact. This split may invite Supreme Court review.
Evaluating the evidence in the light most favorable to the parents who challenged the policy, the court identified several categories of evidence supporting an inference of discriminatory intent, including:
- Public statements by district administrators promising to evaluate all policies “through the lens of racial equity” and describing the admissions policy as a “result of” the equity lens review.
- Published goals to “grow” the percentage of qualified African-American and Hispanic students toward being proportional to the population of the district as a whole.
- Evidence that the admissions policy was rolled out on the eve of the application deadlines with little opportunity for comment or input.
For these reasons, the court concluded that the district court’s grant of summary judgment was improper because it was possible for a factfinder to conclude that the district was motivated at least in part by race when choosing to rely on zip codes “to alter the racial makeup” of the district’s four most selective high schools. Judge Hardiman wrote, “Altering the schools’ racial makeup would increase the representation of Black and Hispanic students while decreasing white and Asian students’ representation in a zero-sum admissions game.” Drawing on SFFA, the court treated competitive admissions as an environment in which racial trade-offs that benefit one group necessarily negatively impact another group, making impact easier to establish in selective admissions contexts where spots are limited.
Citing the SFFA decision, the court reasoned that “it is ‘patently unconstitutional’ for a public school to seek ‘some specified percentage of a particular group merely because of its race or ethnic origin.’” Similarly, the court noted that “racial balancing … that ‘approximates the district’s overall demographics’ is an illegitimate objective.”
Importantly, the decision does not hold the admissions policy unconstitutional. Rather, the Third Circuit vacated summary judgment and remanded for further factfinding.
Key Takeaways
The Third Circuit has interpreted SFFA v. Harvard as holding that it is unlawful to try to alter a school’s racial makeup in a “zero-sum game” and also unlawful to seek to achieve a specified percentage of participants of a particular race.
Challenges to diversity efforts are likely to look to the purpose of such efforts, even if the efforts rely on race-neutral criteria, such as zip codes.
Challenges to diversity efforts will be subject to strict scrutiny if challengers can show that racial equity motivated the decision and that there was a racial impact.
Going forward, when admissions programs are challenged in the Third Circuit, educational institutions should expect that facially-neutral diversity efforts, such as relying on geography, socio-economic factors, or other proxies, will be scrutinized for racial intent. Courts will look beyond the text of a policy to examine the purpose behind it, and if challengers can show both discriminatory purpose and impact, the policy will be subject to strict scrutiny. Organizations that operate in multiple jurisdictions may want to consider working with counsel to understand which impact framework governs their potential exposure, given the existing circuit split.
Institutions may want to consider whether favorable aggregate statistics will insulate them from liability. Evidence that a particular group remains over-represented may not be sufficient to defeat an impact claim at summary judgment, and challengers will likely rely on before-and-after comparisons and individualized harm theories. Institutions may wish to avoid publishing numeric racial targets, to exercise caution in framing policies as responses to racial demographics, and to consider whether internal communications reflect lawful objectives.
Ogletree Deakins’ Diversity, Equity, and Inclusion Compliance Practice Group, Higher Education Practice Group, and Workforce Analytics and Compliance Practice Group will continue to monitor developments and provide updates on the Diversity, Equity, and Inclusion Compliance, Higher Education, State Developments, and Workforce Analytics and Compliance blogs as additional information becomes available.
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