Supreme Court: Harvard and UNC Affirmative Action “invalidated under the Equal Protection Clause of the Fourteenth Amendment”
Chief Justice Roberts for the 6-3 majority: “The race-based admissions systems that respondents employ also fail to comply with the twin commands of the Equal Protection Clause that race may never be used as a “negative” and that it may not operate as a stereotype” and a “student must be treated based on his or her experiences as an individual—not on the basis of race.”
The U.S. Supreme Court has dealt a blow to race-based affirmative action in college admissions and by implication elsewhere, putting to an end a narrow carve-out for higher education that had permitted colleges and universities to engage in otherwise unlawful conduct in the name of promoting diversity.
We haven’t previously paid a lot of attention to the UNC case, but we have been covering the the Harvard case since inception through Supreme Court oral arguments:
- Complaint Says Harvard Discriminates Against Asian-Americans (2015)
- New Harvard President Rejects Claims of Discrimination Against Asian-Americans (2018)
- Federal Judge Sides With Harvard in Discrimination Case Brought by Asian Applicants (2019)
- Trump administration sides with Asian American students in discrimination suit against Harvard (2020)
- Appeals Court upholds Harvard’s discrimination against Asian-Americans (2020)
- Supreme Court Asked To Hear Harvard Anti-Asian Discrimination Case (2021)
- Supreme Court Delays Whether To Review Harvard Anti-Asian Discrimination Case, Seeks Biden Admin Position (2021)
- Harvard Dropping SAT Requirement for Several More Years Enables More Anti-Asian Discrimination (2021)
- Supreme Court Agrees To Hear Harvard and UNC Affirmative Action Cases (2022)
- Our SCOTUS Brief: “The Grand Judicial Experiment of Excusing Racial Discrimination in University Admissions … Has Failed” (2022)
- Harvard SCOTUS Case: American Bar Association Supports “Race-Conscious Admissions Policies” (2022)
- Higher Ed Establishment v. Asian Students at SCOTUS (NY Post Op-Ed 2022)
- Affirmative Action: My Argument Against Racial Preferences Prevails at Cornell Political Union Debate (2022)
- Supreme Court Conservatives to Universities: “When Is The End Point” Of Race-Based Affirmative Action? (2022)
- Hide the Ball: Columbia U Becomes First Ivy League School To Permanently Eliminate Required Standardized Admissions Testing (2023)
The dockets with all Supreme Court proceedings are 20-1199 (Harvard)and 21-707 (UNC). Justice Jackson did not participate in the Harvard decision since she formerly was a member of the Board of Overseers of the University. The Harvard and UNC decisions are here.
But we have permitted race-based admissions only within the confines of narrow restrictions. University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and—at some point—they must end. Respondents’ admissions systems—however well intentioned and implemented in good faith—fail each of these criteria. They must therefore be invalidated under the Equal Protection Clause of the Fourteenth Amendment.
***
For the reasons provided above, the Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points. We have never permitted admissions programs to work in that way, and we will not do so today.
At the same time, as all parties agree, nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. See, e.g., 4 App. in No. 21–707, at 17251726, 1741; Tr. of Oral Arg. in No. 20–1199, at 10. But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today. (A dissenting opinion is generally not the best source of legal advice on how to comply with the majority opinion.) “[W]hat cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows,” and the prohibition against racial discrimination is “levelled at the thing, not the name.” Cummings v. Missouri, 4 Wall. 277, 325 (1867). A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race.
Many universities have for too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice.
The judgments of the Court of Appeals for the First Circuit and of the District Court for the Middle District of North Carolina are reversed.
MORE TO FOLLOW
The Supreme Court gave universities a narrow opening, and Harvard just announced it’s going to drive an affirmative action truck right through it. https://t.co/Icj8ubIcpn pic.twitter.com/jBD2qCcRHt
— William A. Jacobson (@wajacobson) June 29, 2023
We will be holding an online event on June 30 at Noon, to discuss the rulings and implications, including for the work we do at the Equal Protection Project to fight discrimination done in the name of Diversity, Equity, and Inclusion.
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Comments
Harvard’s gonna have to declare bankruptcy
Nah, they’ll just stop pretending to be a university and keep the hedge fund going
Not with their endowment.
Well good. Invalidated = unconstitutional I assume. Unis and colleges will find work arounds soon if not already.
Sounds like “DEI statements” are on the way for high school students applying to college. It’s not clear how the majority could have prevented this. But at least with DEI statements you can learn how to write them, and they must be judged in a race-neutral manner.
Mine would be short and to the point, Eff DEI and every leech that is grifting by making a living from it.
The racists are going to put on a show. Pass the popcorn and settle back in the recliner.
.
Black on all others racism has taken its first hit.
I like Thomas’ concurrence. He asserts that ALL AA — not just admissions — is illegal.
And I never thought I’d write these words, but . . .
Roberts’ opinion is powerful.
This is obviously the correct decision, but Roberts didn’t want to make as much change as happened with Roe v. Wade. We’ll get the rest later.
Sixteen years ago, Chief Justice Roberts wrote, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
I guess he meant it.
Took him long enough.
A fast scan of many words in the ruling doesn’t say what the vote breakdown was. I assume the vote was 6-2.
From the sub-heading at the beginning of the article
“Chief Justice Roberts for the 6-3 majority: “
From the opinion linked, it was 6-3 for the NC case, 6-2 (Jackson recused) for Harvard. Once you slice and dice the concurring opinions.
Since Jackson was once a member of the board at Harvard that used the now unconstitutional process to bar qualified applicants based on race, it would be save to assume that she would have joined the dissent, if allowed.
Clearly I need stronger readers. Thanks all!
It is easy to blow by when looking for something.
Racial stereotyping would be hard to distinguish from disparate outcome.
“Disparate impact” needs to be next on the chopping block.
Disparate impact is often self inflicted.
How would freedom of association fit in? Is it more allowed or less allowed?
Less freedom of association. And now all of our institutions of higher learning will be overtaken by Asians. Quite frankly, Asian culture is NOT American culture. .
This is crap. Only to the extent that it helps whites do I favor it.
“Asian culture” is already prevalent, and unless it means more Chinese spies (which it might), I don’t mind the change. It could replace cultural pushes that truly roil the waters at universities and allow the universities to start to join the better parts of American culture. The net change in terms of white admissions may be about zero, but the university will be a better place.
“Overtaken by Asians.” You mean Americans of Asian descent, I assume? If merit is the admitting standard — as it fairly should be — let the chips fall where they may. People who work and study hard deserve to reap success, and, ethnicity should have nothing to do with it.
You should be celebrating a system that prizes merit as the yardstick by which candidate/applicants are measured.
For that to be true, the would have to embrace American values. They don’t
What basis do you have to make such a presumptuous, sweeping and unfair generalization about whether or not an entire ethnic group is embracing “American values?” You know these people that you’re talking about? You’ve met them? Bottom line — you don’t. And, frankly, your statement smacks of brazen bigotry.
You sound incredibly bitter about all of this, but, your perspective is incredibly misguided and morally wrong. You’re way out of line on this.
Maybe white people should emulate aspects of Asian which drive their success. Heaven only knows that many cultures are in large part meritless. Middle East comes to mind, our inner cities. Much of Latin America. Asian presence is a net positive. How about we expel 10 illegals for each legal admitted?
Asians had better brace for screaming from the Left, absurdities that they’re “white supremacists” and such like.
The Left may just ignore Asians, and claim the rulings provide advantages to white people, regardless of the actual effect they will have on the racial makeup of student bodies at some, highly-regarded universities that have intensely competitive application processes. When has the Left been required to deal with reality/facts?
Now universities should have to sideline all the meritless people still in the pipeline, and admit those who merited admission. Next lawsuit should address this.
as Sotomayor says herself in her footnote 35: “Today’s decision is likely to generate a plethora of litigation by disappointed college applicants who think their credentials and personal qualities should have secured them admission. By inviting those challenges, the Court’s opinion promotes chaos and incentivizes universities to convert their admissions programs into inflexible systems focused on mechanical factors, which will harm all students. “
Sotomayor & Jackson are racist and probably not on SCOTUS based one merit. Lets hope we are on a roll advancing people who lack merit. We have a staggering amount of deadwood throughout American society.
It’s interesting that Kagan, the member of the court’s left bloc who has undeniable top legal skills, chose not to write a dissent. And that the two dissents by Sotomayor and Jackson are more in the way of rehashing racial grievances than coherently arguing that the majority opinion is legally incorrect.
It seems to me that Roberts left the door open to allow race-based admissions to continue through the admission essay. I may be reading that incorrectly, but since essays are measured subjectively, wouldn’t simply writing an essay that confirms the mythos that being black in America is a near insurmountable hardship on its face allow colleges to end-run the opinion?
That was my interpretation as well. It’d be easy for universities to stress to applicants to describe how racechas impacted their lives and then use that to discriminate based on race.
I’d just been done with all of AA based anything.
If only the majority had taken Thomas’ ruling. Roberts ran some interreference for Marxist’s golden idols as per usual.
That’s why Roberts wrote the decision. Thomas, as the senior Associate Justice, was next in line to write it, if he wanted to, and he would have wanted to. He likely would have said something like “Affirmative action is racist and thus unconstitutional under the 14th Amdt”. You just have to look at Bruen to see why he worries the left, and CJ Robert’s so much.
That’s a pretty succinct summary of Thomas’ concurring opinion. I have no doubt that Robert’s wrote the opinion specifically to avoid Thomas’ scorched earth opinion becoming binding precedent.
I’m worried about Roberts opinion because he says that race based admissions as they are currently constructed can’t stand up to strict scrutiny because the results aren’t quantifiable, but then in his closing leaves open an avenue to continue race-based admissions barring them in a throw-away line that leaves no bright-line means to determine that college admissions don’ do exactly what they are told not to do. He literally admonishes them for asking us to trust them earlier in the opinion and finishes the opinion by stating we will trust them.
How could he have excluded it? The essay can discuss life challenges and experiences. I think it’s better that he addressed it and limited it explicitly. Apparently (haven’t read the opinions yet myself so going from the article) the dissents hated those limitations.
Then there may be further litigation to stop that. Also, there should be vigorous civil litigation over those essays. I have no doubt that academia will j=have to be bitch slapped over this.
A dissenting opinion is generally not the best source of legal advice on how to comply with the majority opinion.
Solid advice!
A warning to Harvard’s likely aim of doing as Prof. Jacobson says — driving a truck thru any porosity it can find in the decision.
Excellent.
Now kill the student loan debt cancellation program and I will feel better about this court.
Overturn Kelo too.
Kelo is nothing more than Dobbs for the left. I think we’ll have to swallow it.
Saw Professor Jacobson on Fox News very early this morning on this matter, before the decision came down .Well done, sir!
Professor,
I am old enough to remember the Bakke Case which also officially ruled out race based admissions, but gave an out that became a mile wide for the left to drive its reverse discrimination truck through it.
How is the “but” here different?
BTW, I am going to post to the same question to the blog run by that law professor in Knoxville.
I’m old enough to remember when a person could become president of the United States based on affirmative action alone.
It’s different. Now undergrad and graduate admission essays will include DEI statements like they’ve been using for faculty hiring. But at least one can learn how to write one of those. It’s a place where one certainly doesn’t want to “wing it” but get expert and honest help. Ideally it will come out sounding like someone whom you wouldn’t want to be friends with.
get AI to do it for you
Excellent news. It’s past due.
The question this ruling poses for me is how to square the underlying philosophy (evaluate each person, discard race/immutable characteristics as a proxy for evaluating individuals character/competence or injury) with the rulings about redistricting.
If the CT holds that race should not be used as a proxy or determining factor outside very narrow circumstances of individual v group harm and relies upon 14th amendment equal protection grounds (which I agree with) how does the CT rationalize the redistricting cases? Why continue to allow ‘majority minority’ congressional districts and why demand that States must create and maintain them?
This is especially so when the vast majority of these ‘majority minority’ districts are way out of line with other factors; compact, contiguous, preserve (don’t split) County/municipal borders, grouping common culture v splitting. It would seem these rulings are at odds philosophically when race is being deliberately mandated by the CT to be inserted into an individually neutral redistricting process that is also required to treat people as individuals. It’s a curious thing to me.
I think that was cherry-picked as being the most ridiculously distorted map they could find in the country to build the case on. It’s also worth noting that gerrymandering by race would be much harder than simply doing so by historical voter data. That’s what New York did when it drew an even more distorted map to dilute the vote of orthodox Jewish communities rather than all Jewish communities. Democrat strong-holds trend toward impoverished black enclaves and upper-middle class highly educated white enclaves: how do you call diluting those a racial issue? It’s clearly a political issue and as such should have been dismissed for lack of jurisdiction.
On the flipside of that, the creation of majority-minority districts in many areas is a natural result of drawing efficient maps. Minorities are much more likely to live in compact urban areas. Drawing squares with about 700k population in them in for instance, the southern part of Chicago is likely to yield a majority-minority district.
Not the Alabama case. There the CT held that a second ‘majority minority’ CD must be created b/c they agreed with the plaintiffs that due to 25% black population in the State then 2/7 CD was appropriate.
The CT has also held that political party considerations in redistricting are permissible; a party in power doesn’t have to draw districts that match political party balance. Then they turn around and hand the d/prog a racial proxy to stand in for party affiliation. Then a few days later the tell Univ ‘nope, no more counting by race as a proxy, you must use individual evaluation b/c 14th amendment equal protection.
Either race/immutable characteristics should or they should not be used to make decisions. The CT is, IMO, offering up an inconsistent contrast between the two rulings.
I teach seniors in a good suburban high school My Asian kids were bummed that this didn’t happen a year ago.
Hey, now they have standing to go after the institutions that turned them down. Case holds that the use of race was illegal. If it was used against them, they have a cause of action to remedy the illegal behavior. Expect to see lots of class action lawsuits filed.
“But we thought it was legal at the time” doesn’t cut it, especially as to private institutions.
I just saw Professor Jacobson on NewsMax. Great job professor!
I am hopeful that SCOTUS takes the case challenging the revamped admissions policy at Thomas Jefferson High School for Science and Technology here in Fairfax County which has resulted in a substantially reduced Asian American enrollment. Lower courts rejected the claim that the new policy was discriminatory.
Any cert petition in that case will be GVR’d. Guarantee it.
I had to look up GVR.
One important nit: the district court held that the plan WAS discriminatory and threw it out. The Fourth Circuit stayed the injunction (SCOTUS let the stay stand, over vigorous dissents by Thomas, Alito, and Gorsuch), and then tied itself into knots to reverse the district court and announce their decision before SCOTUS.
That they did so instead of saying, “hey, let’s just wait a month and see what SCOTUS does,” it very telling, given that everyone expected there to be some change or at least refinement in the law.
I read the Fourth Circuit’s opinion as one big middle finger to SCOTUS. With three justices already on record against them, and it being pretty clear that the plaintiffs would be able to “get to five,” the Fourth Circuit panel engaged in what is essentially primal scream therapy.
Note that the plaintiffs did not even bother to file a motion for reconsideration / MFREB, which would have stayed the mandate and created an opportunity for the Fourth Circuit to correct itself based on the new law. I think they read the leaves as I do: just get it to SCOTUS, and they’ll either GVR or summarily grant, reverse, and render.
It will be easy to see if the schools obey the ruling or cheat in new ways. If there are more than just a handful of the favored minorities admitted in future, they are cheating.
They will cheat, no doubt about it. The university admins are inundated with DEI cultists, they will move on to a different criteria to use as a proxy for race.
Biden is encouraging them to cheat. Encouraging them to have students write in their essays with experiences about racial discrimination. Suddenly we’ll have a lot of creative sob stories.
Exactly. Good ruling, but academia will cheat. It’s what they do.
Excellent result.
The next two months are going to drive college admissions departments insane as they scramble to undo all that racial discrimination they had done in time for fall semester.
Wow
“At the same time, as all parties agree, nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise”
This renders the whole thing pointless. When Shmaequa and Jamal submit their race essays, admissions will have no trouble identifying them as immediate admittees. When Wang and Lee do the same thing, they’ll be shitcanned. Anyone thinking the CRT warriors at our universities will follow the majority ruling are delusional.
I think some will comply willingly and some will not. Harvard obviously will not. But to the extent other good schools do comply and have stronger graduating classes as a result, that will hurt Harvard where it deserves to be hurt: in its prestige. According to the letter it released today, it seems to want to specialize in first-gen. That’s great, but most of the strongest graduates won’t be first-gen.
I hope you publish Stacey Matthews’ column here. She included Justice Thomas’s rebuttal of Jackson’s dissent. This man is going to go down as one of the greatest justices of all time, and is one of the few things great that came out of Bush’41’s Administration.
Ya’ know . . .
In the HIGHLY UNLIKELY* advent this portends a return to valuing applicants to schools or for employment on the basis of merit, this country would eventually return to its founding principles, common sense would prevail, and a great deal of stupidity would be eliminated.
This great website would be outta business!!
* I know. It’s just an unrealistic dream.
This rectification of an egregious, lawless, myopic and inequitable mistake was long overdue. The damage done to both individuals and to American society as a result of SCOTUS having allowed race to be used as a factor in undergraduate and graduate admissions has been incalculable.
Then-Justice O’Conner was naive and foolish in allowing this idiocy to take root, in the first place. And, SCOTUS’s prior decision laid the groundwork for, and, granted undue legitimacy to, all the obnoxiously and brazenly racist “equity” and “diversity” claptrap and agitprop nonsense that we see today in corporate settings, as well as in government and in schools,
*O’Connor*
The key mistake hasn’t been undone, and in fact would cut the other way. Perhaps it can be fixed now.
The mistake being in the civil rights law, that freedom of association is suspended. It should be that it’s suspended only in monopoly markets.
Then freedom of association would be back and Harvard could admit anybody they wanted for any reason.
So you wanted Harvard to win? Oh well, they didn’t. And civil rights law can’t supersede 14A which is the basis for this ruling.
In 1964, the Civil Rights Act was passed which outlawed racial discrimination. Why hasn’t that invalidated all the quotas and preferences. I understand that under a Democratic Admin, the DOJ just ignored the law, but don’t understand why under Republican ones, the DOJ didn’t act.
This ruling relies on the 14th amendment and seemingly has nothing to do with the 1964 Act.
Read Gorsuch’s concurrence which covers just that ground. He doesn’t say it, but it’s better that it’s based on 14A, because then it will stick even if Congress goes far left.
Alas, this won’t change a thing. The colleges will work around the spirit of the ruling, employing the principle of “plausible deniability.”
Never forget that ideological purity always finds a way to beat the letter and/or spirit of the law.
I disagree. This ruling is about as airtight as it could be, and it sends a clear message that this Court won’t be messed with on the issue. The only thing missing is a Republican DOJ to do civil rights pattern-and-practice investigations into offending schools.
Thomas’s concurrence displays his usual brilliance in laying out the relevant historical and legal history. And, he manages to give a few “shout-out” quotes to the great Thomas Sowell!
To his great credit, Thomas also fairly pointed out Harvard’s and the Ivies’ long history of discriminating against American Jews, and, noted that Harvard’s racially discriminatory admittance policy still likely results in discrimination against that same group.
It’s a VERY strong ruling. Gorsuch’s concurrence is excellent reading. It’s decided on the basis of the 14th Amendment. But the case is an even clearer violation of Title VI of the 1964 Civil Rights Act. Still, it’s better that the court ruled on the basis of the 14th Amendment, because it applies then to colleges that don’t receive federal funding, and it can’t be neutered by legislation if the Dems get total control of Congress in the future.
Why didn’t Jackson and the other two hysterical shrikes cite the Juneteenth amendment in their dissent?
Sotomayor’s writing is unprofessional. She takes this personal swipe at Justice Thomas:
“He first renews his argument that the use of race in holistic admissions leads to the “inevitable” “underperformance” by Black and Latino students at elite universities “because they are less academically prepared than the white and Asian students with whom they must compete.” Fisher I, 570 U. S., at 332 (concurring opinion). JUSTICE THOMAS speaks only for himself.”
Did the wise Latina really do better in school than Justice Thomas?
That’s on p. 56 of Sotomayor’s dissent.
The dim-witted, narcissistic Latina who boasted that her ethnicity allegedly made her a superior judge as compared to a white man, and “I”m not a scientist” Brown-Jackson — both owing their SCOTUS seats solely to their ethnicity/skin pigmentation — would naturally dissent from a majority opinion holding that universities’ use of racial preferences in college admissions is patently unconstitutional.
KBJ is becoming even more predictable than Sotomayor as a fount of predictable left-wing talking points whether they are relevant or not. Her dissent seems entirely ideological.
“There is a certain class of race problem-solvers who don’t want the patient to get well, because as long as the disease holds out they have not only an easy means of making a living, but also an easy medium through which to make themselves prominent before the public.” ~ Booker T. Washington
When people ask, “What shall we do with the Negro?” I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are wormeaten at the core, if they are early ripe and disposed to fall, let them fall! I am not for tying or fastening them on the tree in any way, except by nature’s plan, and if they will not stay there, let them fall. And if the Negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone!
— Fredrick Douglass
Why was “Affirmative Action” Jackson involved at all. Did she not need to recuse herself due to her history on the board of overseers?
She voted on the UNC case but not Harvard. That’s why UNC was 6-3 and Harvard was 6-2.
Just like the illegal immigrants are told exactly what to say to get asylum into the US, the college applicants will be told exactly what words and phrases to put into their life experience resumes to establish an exception to the race rule. This probably started today.