The responses that emerged immediately after the Supreme Court released the Students for Fair Admissions v Harvard College decision and its companion case involving the University of North Carolina have been swift, heated, and at times hyperbolic.
The decision reached by the Court effectively ends the direct use of race in college admissions, which has been traditionally accomplished through programs commonly called Affirmative Action. In ending those programs, the Court held that the direct use of race in admission decisions violated the Equal Protection Clause of the 14th Amendment to the Constitution.
Writing in support of the Court’s decision Chief Justice Roberts observes:
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.
Writing in response and in dissent to the decision, Justice Sotomayor writes that the Court’s decision:
holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits . . . . The Court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society.
Despite Justice Sotomayor’s and many others’ claims, the Court’s decision has not ended all diversity-oriented efforts. Instead, the decision emphasizes and centers the value of diverse experiences rather than trivializing them by reducing them to simple categories. Although universities can no longer directly consider the race of a candidate, they are still permitted to consider how race has affected the applicant’s experience, development, and as a result, their individual qualifications. Stories about overcoming adversity, discrimination, difference, and unique perspectives remain a viable and important part of what a university may use.
Minimizing these individual merits and assigning value based purely on imperfect and overly broad racial categories (for example, no disaggregation of East, Southeast, and South Asians or Middle Eastern individuals) does not forward any desirable goal.
Chief Justice Roberts summarizes this point clearly:
. . . 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 Court struck down race-based admissions on the grounds that the practice violated the Equal Protection Clause of the 14th Amendment because it was not narrowly tailored to a compelling and measurable interest. In making that determination, the Court holds that to be narrowly tailored, the policy must be applied only when absolutely necessary and no other reasonable alternatives exist. Despite shouts to the contrary, this approach has been the basis of much jurisprudence around the Equal Protection Clause.
The Court had historically recognized two major instances where racial discrimination can be considered narrowly tailored. The first is rectifying immediate and explicit instances of previous discrimination, and the second is preventing violence. Yet even in these instances, the Court has been reluctant to widen the explicit use of race to general decision-making. For example, in City of Richmond v. Croson, the Court struck down a municipal policy to award a percentage of contracts to minority-owned businesses. They held that although minorities have faced injustice in the past and present, justifying a policy on that general notion is not narrowly tailored and, therefore, unconstitutional.
Affirmative action itself changed the approach of the Court and, as a result, opened a third exception. The Court, in Grutter v. Bollinger, recognized that schools had a compelling interest in creating diverse student bodies with important caveats.
The first is that universities should not use race as a means to stereotype applicants, drawing broad conclusions about what a student may offer based solely on race. The second is that affirmative action must not harm non-minority applicants by discounting their worth. Finally, and most importantly, race-based admissions are a necessary evil that must eventually end. Justice O’Connor, in her Grutter opinion, asserted that “the Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
In Students for Fair Admissions, Harvard and the University of North Carolina failed to meet any of the rigorous standards laid out by the Court. To justify their race-based admissions, they offered nebulous and unmeasurable goals (objectives must be measurable under Fisher v. University of Texas, a previous affirmative action case) such as “training future leaders” and “preparing engaged and productive citizens.” As commendable as these goals may be, there is little evidence that decision-making based on race in the application process is absolutely necessary to forward these objectives.
The universities further claimed that affirmative action, as implemented by their programs, does not harm non-minority applicants; the reality is that college admissions are a zero-sum game. A reality pointed to by the Court directly. Despite attempts to cast racial preferences as merely a helping hand to minority applicants, those preferences ultimately mean that a proportional amount of non-minority individuals will be rejected based, in part, on their race.
Harvard and UNC failed the last test laid out in Grutter: an intention to end affirmative action. With Gruttter decided in 2003, twenty of the twenty-five years suggested by the Court have passed, and schools like Harvard have shown no intention of winding down race-based admissions. In fact, they have admitted that their own internal reviews call for the continued use of affirmative action. Furthermore, their regular public statements, as well as their immediate reactions to the Court’s decision, all display their commitment to emphasizing the role of race more, not less, in the immediate and long run.
Despite the clamor and vitriol quickly emerging over the end of the direct use of race in college admissions, the decision reached by the Court should not have been unexpected given the plain text of the 14th Amendment and the jurisprudence surrounding it. Discussions around race, the meaning of equality, and how that equality might be achieved will continue, and nothing from the Court’s decision changes that reality. What the Court lays out is a clear requirement that instead of simply relying on simple racial classifications, colleges must instead consider the individual candidate, their abilities, and their unique circumstances.
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Dr. Ryan M. Yonk is Senior Research Faculty at the American Institute for Economic Research.
Ethan Yang is an adjunct research fellow at the American Institute for Economic Research and a 3L at Antonin Scalia Law School, George Mason University.
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