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
— William A. Jacobson (@wajacobson) June 29, 2023
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