Supreme Court Strikes Down Affirmative Action in Higher Education

On June 29, 2023, in a 6–3 decision, the U.S. Supreme Court ruled that Harvard’s and the University of North Carolina’s admissions programs violate the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution, as well as Title VI of the federal Civil Rights Act.

The Court’s Ruling

In the cases Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina (the “Cases”), a group of Asian-American students brought suits against Harvard and UNC alleging anti-Asian discrimination in the schools’ admissions process. In previous affirmative action cases, the Supreme Court held that universities could utilize “race-conscious” admissions policies when deciding whether to admit a student.

The Supreme Court held that both universities’ admissions programs violated equal protection. While the Court had permitted race-based college admissions as an exception to the Equal Protection Clause in the past, it did so on the basis that such programs satisfy the “strict scrutiny” standard, could not utilize race as a stereotype, and had to be finite.

According to the Court, Harvard and UNC’s admissions programs failed on all three counts. The Court stated in its opinion: “the student must be treated based on his or her experiences as an individual—not on the basis of race.”

However, the Court explained that universities may consider an applicant’s explanation of how race has impacted their life and experiences as part of an application process, as long as this information is considered as part of an assessment of an applicant’s “character” or “unique ability to contribute to the university.”

Broader Impact

The Court’s decision may have consequences beyond higher education and affect employers’ hiring and promotion policies across all sectors of the economy. Accordingly, employers should examine their approach to DE&I initiatives, particularly in the context of existing policies related to an organization’s diversity goals. Policies which consider race and ethnicity in a manner similar to Harvard and UNC should be carefully considered in light of the Court’s ruling.

This alert serves as a general summary and does not constitute legal guidance. Please contact us with any specific questions.

Ryan K. Kauffman is a Shareholder at Fraser Trebilcock with more than a decade of experience handling complex litigation matters. You can contact him at or 517.377.0881.

Five Stories that Matter in Michigan This Week – July 15, 2022

  1. Supreme Court Ruling Shouldn’t Affect Michigan’s Healthy Climate Plan

The Supreme Court’s recent ruling limiting the EPA’s ability to regulate carbon emissions from power plants should not affect Michigan’s course of following through with the MI Healthy Climate Plan, which was first released in April 2021. The MI Healthy Climate plan seeks interim reductions of 28% by 2025 and 52% by 2030.

Why it Matters: Businesses should continue to plan for the implementation of the MI Healthy Climate plan and other regulations as the state continues to shift towards the goal of net-zero greenhouse gas emissions no later than 2050. If you have environmental issues with state and/or federal agencies, contact our environmental attorneys.


  1. Several Groups Send Letter to LARA Seeking Adoption of International Energy Standards

Several groups have sent the department of Licensing and Regulatory Affairs seeking them to adopt a set of international energy standards for residential and commercial buildings in preparation of electric vehicle charging and to help reduce climate impact.

Why it Matters: Including reducing climate impact, the groups have touted hundreds of dollars in energy cost savings for Michigan residents with the adoption of the new standards. “These provisions will lower costs for Michigan residents and businesses, increase household resilience from extreme weather events, and help reduce climate impacts from the building sector,” the groups wrote.


  1. Tax Reform Goals Priority for New “Fund MI Future” Coalition

A collection of 20 organizations have formed a newly created coalition with the aim of better funding Michigan’s public services with changes to the state’s tax policy. Following the release of Michigan’s next annual budget, the group plans to revise the state’s tax system and close tax loopholes so that wealthy individuals and organizations will now “pay what they owe” to support clean water access, job funding, and school support.

Why it Matters: If the new coalition’s plans for altering the state’s tax policy succeeds, organizations and wealthy individuals are expected to have higher tax bills.


  1. Mixed Signals in Michigan Marijuana Sales Data

One the one hand, the Michigan legal marijuana industry is booming. Sales in Michigan hit $1.03 billion in the first half of 2022, up by 26.9% from the same period last year, according to the Michigan Marijuana Regulatory Agency (“MMRA”). A Detroit News article reported that Michigan has become the third largest marijuana market in the country. On the other hand, not all news is rosy in the industry. There are now more than 1,000 licensed marijuana retailers in Michigan, and while sales numbers are at all-time highs, the competition in the state is driving down prices. MMRA reported that the average price for flower at $1959 per pound in June, down 41.6% from the same period in 2021.

Why it Matters: With inflation surging across the economy, falling prices in the marijuana industry mean that profits may be hard to come by. This may lead to more consolidation within the industry as operators and investors seek to achieve economies of scale.


  1. Bipartisan Bills Would Allow Alcohol Sales at Some College Sporting Events in Michigan

New bipartisan bills in the Michigan Legislature would allow alcohol sales at college basketball, football and hockey games. House Bill 6289 and Senate Bill 1125 would allow the Michigan Liquor Control Commission to issue licenses to be used for events within the public areas of university football, basketball and hockey stadiums. Sales would be permitted two hours before and after each game.

Why it Matters: Sponsors of the bills point to data showing that allowing alcoholic beverages in venues during sporting events lowers the probability of excessive alcohol consumption that might otherwise happen during tailgating before a game or if alcohol is snuck into a stadium.

Related Practice Groups and Professionals

Environmental Law | Michael Perry

Business & Tax| Ed Castellani

Taxation | Paul McCord

Cannabis | Klint Kesto

Energy, Utilities & Telecommunication | Michael Ashton

Rucho et al v Common Cause

The United States Supreme Court today issued a long-awaited ruling in Rucho et al v Common Cause, et al that immediately highlights the value of Michigan’s recent Voters Not Politicians ballot initiative to pass Proposal 2 ending partisan gerrymandering in Michigan.

Michigan has already insulated itself from much of the harsh impact of today’s federal decision, by moving forward to adopt Proposal 2 to amend Michigan’s Constitution, which will result in the formation of a citizen’s commission to redistrict the state for the 2022 elections.

The Fraser Trebilcock election team represented Voters Not Politicians in VNP’s successful 2018 litigation winning a ruling from the Michigan Supreme Court mandating that Proposal 2 appear on that year’s ballot, and changing Michigan law in the process.

To view the full opinion, click here.

If It Doesn’t Say So, it Aint So: Michigan Supreme Court Holds For-Profit Schools Entitled to Property Tax Exemption

A unanimous Michigan Supreme Court decision this week will have big implications for for-profit schools and colleges – and even for-profit laboratories, research and development facilities, and test centers. Continue reading If It Doesn’t Say So, it Aint So: Michigan Supreme Court Holds For-Profit Schools Entitled to Property Tax Exemption

SCOTUS Same-Sex Marriage Decision May Impact Employee Benefits Plans

On Friday, June 26, 2015, the U.S. Supreme Court issued the 5-4 landmark decision in Obergefell v Hodges striking down same-sex marriage bans across the country as unconstitutional under the Fourteenth Amendment. Continue reading SCOTUS Same-Sex Marriage Decision May Impact Employee Benefits Plans

United States v. Windsor: One Year Later

On June 26, 2013, the U.S. Supreme Court issued its decision in United States v. Windsor, invalidating Section 3 of the Defense of Marriage Act (DOMA). In the year following the decision, its implications for employee benefit programs are becoming more clear. Fraser Trebilcock attorney Brian Gallagher recently spoke about these implications as the employee benefits panelist for a Thompson Reuters webcast on the current state of the law.

Continue reading United States v. Windsor: One Year Later

U.S. Supreme Court Rules: Police Need Warrants for Cell Phone Data

Hold the phone! Your mobile device is now off limits to police without a warrant. The U.S. Supreme Court ruled unanimously on Wednesday that police must have a warrant in order to search your cell phone, refuting arguments by law enforcement that a cell phone search is similar to looking in your wallet.

Continue reading U.S. Supreme Court Rules: Police Need Warrants for Cell Phone Data


A three-judge panel from the United States Court of Appeals for the 6th Circuit has ruled that the Obama administration’s plan to require citizens to purchase health insurance did not violate the Constitution.  This is the first such opinion and is considered a win for the Obama administration.

The Thomas More Law Center, based in Ann Arbor, had sued on behalf of itself and its members claiming that the requirement in the 2010 health care law for individuals to either purchase health insurance or to pay a penalty was unconstitutional.  The judge in the Eastern District of Michigan disagreed, holding that the statute was constitutional.  The plaintiffs appealed the decision to the Court of Appeals, which upheld the lower court’s decision.  There are currently two other similar lawsuits pending in other  parts of the country.

Plaintiffs argued that Congress lacked authority to require citizens to purchase health insurance and that the penalty for not purchasing health insurance constituted an unconstitutional tax.    But on appeal, the Court found that Congress could rationally believe that requiring the purchase of health insurance was an economic activity that had substantial effects on interstate commerce, and that the provision requiring either purchase or a penalty was essential to the larger approach to reforming the health care and health insurance markets.

Combined with the other two opinions pending from the 4th Circuit and the 11th Circuit, it is widely expected that the Supreme Court will take up one or more of the decisions for review, potentially as early as the Supreme Court’s next term which commences in October.  Accordingly, the 6th Circuit’s opinion is not likely to be the final say in the matter.

As the constitutionality of the health care law effects every person in the United States, the arguments by the litigants and ultimately the decision of the Supreme Court have an important impact on the lives of Americans.  If you have any questions about this article, or legal concerns about any health care issue at all, please see our Health Care web page for contact information of our Department’s attorneys.

To learn more, contact our Health Care Department Chair Jonathan Raven at or 517.377.0816. Jonathan has guided business and health care leaders in strategically planning, implementing, and adapting to often unpredictable and rapidly changing environments.