Discrimination By Proxy?: Arlington Heights Cases in the Post Students for Fair Admissions Era

In the consolidated Students for Fair Admissions cases, the Supreme Court held unlawful the use of race in undergraduate admissions at Harvard University and the University of North Carolina. Many colleges and universities have nonetheless indicated that they plan to circumvent the decision by using proxies for race instead. A 1978 Supreme Court case, Village of Arlington Heights v. Metropolitan Housing, held that using proxies for race to discriminate is generally as unlawful as using race itself. Arlington Heights also sets forth a test for identifying when a challenged policy is prohibited proxy discrimination. But the lower courts have applied Arlington Heights in different ways to challenged admissions policies, with some lower courts engaging in tough scrutiny of challenged policies and with others being much more deferential to assertions of benign intent.

This panel addressed: is proxy discrimination unlawful under the Fourteenth Amendment? If yes, what is the right legal test -- Arlington Heights or something else? What challenged policies, if any, are prohibited proxy discrimination?