ABOVE: At center, Maya Wiley, President of the Leadership Conference on Civil and Human Rights, speaks during a news conference about the Supreme Court’s affirmative action ruling June 29, 2023 in Washington, DC. Also pictured, L-R, Marita Etcubanez, president of strategic initiatives at Asian Americans Advancing Justice, Janai Nelson, president of the Legal Defense Fund, Damon Hewitt, president of the Lawyers’ Committee for Civil Rights Under Law, and Lourdes Rosado, president of LatinoJustice.(Photo by Drew Angerer/Getty Images)
The Supreme Court issued a major verdict last Thursday barring colleges and universities from using race as a factor in college admissions. In a majority opinion written by Chief Justice John Roberts, the Court ruled that the admissions practices of Harvard and the University of North Carolina violate the 14th Amendment.
The Court voted 6-3 in the UNC case and 6-2 in the Harvard case. (Justice Ketanji Brown Jackson, who served on the board at Harvard, recused herself from that school’s case. The two cases were heard separately, but consolidated together for the ruling.) Chief Justice John Roberts wrote the majority opinion; justices Brett Kavanaugh, Neil Gorsuch, Amy Comey Barrett, Clarence Thomas and Samuel Alito all concurred. Justices Elena Kagan and Sonia Sotomayor joined Justice Jackson in dissenting. The majority ruling in Students for Fair Admissions vs. Harvard alters the landscape of higher education, essentially ending affirmative action.
According to Stanford University, “affirmative action is positive steps taken to increase the representation of women and minorities in areas of employment, education and culture from which they have been historically excluded.” The concept had been a part of American law since the 1930s, but in the 1970s it became a hot topic, highly debated at colleges and universities.
One university became the site of a legal conflict. In 1973 and 1974, medical student Alan Bakke was denied admission to the medical school at the University of California, even though his grades and test scores were better than many of those admitted. He sued. The case made it to the Supreme Court in 1977.
That case split the Court, resulting in six different opinions. Justice Lewis Powell wrote the Court’s opinion. He found that the UC admissions program was unconstitutional, and that Bakke should be admitted but also found that race could be considered as one of several factors and that a university’s interest in a diverse student body is “a compelling state interest.” Four justices (including Warren Burger and William Rehnquist) joined with Powell to strike down the admissions program and admit Bakke. Four others (including William Brennan and Thurgood Marshall) dissented on those points, but joined Powell to allow affirmative action in some cases. The Court upheld Powell’s stance in Grutter v. Bellinger (2003). But this new ruling essentially overturns Bakke and Grutter.
In Nov. 2014, the conservative nonprofit Students for Fair Admissions sued Harvard on behalf of a group of Asian-American students who were denied entry. The group claimed that Harvard’s admissions system discriminated against white and Asian applicants, citing data that showed Asian applicants were rated lower on metrics like likability and honesty, even though they outperformed white applicants. (Vox cites data showing that Asian-Americans are actually overrepresented; they make up 22% of Harvard’s student body while just 5% of those in U.S. public high schools.) The organization sued the University of North Carolina at Chapel Hill on similar grounds.
So how does the admissions process work? Chief Justice Roberts explains: “Founded in 1636, Harvard College has one of the most selective application processes in the country. Over 60,000 people applied to the school last year: fewer than 2,000 were admitted.” Roberts adds: “The admissions process at Harvard works as follows: Every application initially screened by a ‘first reader’ who assigns scores in six categories: academic, extracurricular, athletic, school support, and overall […] A rating of ‘1’ is the best; a rating of ‘6’ the worst.”
Once the process is complete, Harvard convenes subcommittees. Each one meets for 3-5 days and evaluates all applicants from a certain geographic area. Then they make recommendations to the full committee. That committee has 40 members; it discusses a breakdown of applicants by race to make sure minority applicants don’t drop off. Each applicant is considered one by one, and every member votes on whether to admit them. The final stage (called the “lop”) has them whittle down the list of tentative students. Those considered for cutting have their name on a “lop list” that contains info on athletic status, legacy status, financial aid eligibility and race. From there, the list is finalized.
UNC, founded shortly after the Constitution was ratified, also has a selective process (4,200 out of 43,500 applicants are approved in a typical year). Every application is reviewed by one of 40 “office readers” who must consider race as one factor in their review. (Other factors include academic, test results, and essay quality.) Readers form opinions on whether the student should be admitted, then write a comment defending his or her decision. (They may offer students a “plus” based on race.) After that, a committee of staff members reviews each decision; they either approve or reject the readers’ recommendation, then finalize decisions on admission.
The 14th Amendment’s Equal Protection Clause provides that “no State shall deny to any person…the equal protection of the laws.” In his opinion, Roberts finds that the admissions systems violate that clause. After a lengthy exposition on racial discrimination that cites Brown v. Board and the Bakke decision, Roberts declares: “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 14th Amendment.”
Roberts says the schools’ goals for their programs can’t be measured or subjected to judicial review. Harvard’s goals for its program “are not sufficiently coherent for purposes of strict scrutiny,” he writes. Roberts claims that the admissions system uses race as a negative, claiming that Harvard’s system led to an 11% decrease in Asian-American students admitted. He also states that it tolerates stereotyping: “Harvard’s admissions process rests on the pernicious stereotype that ‘a black student can usually bring something that a white person cannot offer,’” he writes, quoting Bakke. “UNC is much the same. It argues that race in itself ‘says [something] about who you are.’” He asserts that when a university admits students on the basis of race, it assumes that students of a particular race think alike, which furthers stereotypes that treat individuals as a product of their race.
In her dissent, Justice Sonia Sotomayor pushed back. “It is not a stereotype to acknowledge the basic truth that young people’s experiences are shaded by a societal structure where race matters,” she writes. “Nor is it a stereotype to acknowledge that race imposes certain burdens on students of color that it does not impose on white students.”
Sotomayor responds to the issue of Harvard’s supposed drop in Asian enrollment by saying that the 11% figure is based on a hypothetical: “The Court of Appeals, however, merely noted that […] absent the consideration of race,” Asian American representation at Harvard “would increase from 24% to 27%, an 11% increase.” (Harvard’s class of 2027 is 29.9% Asian, by the way.)
Roberts had argued that Harvard’s system is discriminatory towards Asian-Americans. But under this current system, Sotomayor notes, admissions have increased for all racial minorities, including a five-fold increase for Asian-Americans since 1980. Sotomayor also points out that the SFFA’s own analysis found eliminating the use of race in admissions would decrease Black representation from 14% to 6% and Hispanic representation from 14% to 9%.
As for “strict scrutiny”: Sotomayor points to the two lengthy trials preceding the Court’s decision. (SFFA lost both cases in the Massachusetts district court and the 1st circuit Court of Appeals.) Grutter v. Bollinger confirms that having a diverse student body is just that – a compelling state interest. And Fisher v. University of Texas at Austin (2016) states that race can be “narrowly tailored to obtain the educational effects of diversity.”
“Today, this Court stands in the way and rolls back decades of precedent and momentous progress,” Sotomayor’s dissent reads. “It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits. In so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter. 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.”
Justice Jackson also dissented in the UNC case. “JUSTICE SOTOMAYOR has persuasively established that nothing in the Constitution or Title VI prohibits institutions from taking race into account to ensure the racial diversity of admits in higher education. I join her opinion without qualification. I write separately to expound upon the universal benefits of considering race in this context, in response to a suggestion that has permeated this legal action from the start. Students for Fair Admissions (SFFA) has maintained, both subtly and overtly, that it is unfair for a college’s admissions process to consider race as one factor in a holistic review of its applicants.
This contention blinks both history and reality in ways too numerous to count. But the response is simple: Our country has never been colorblind.”
“The majority seems to think that race blindness solves the problem of race-based disadvantage. But the irony is that requiring colleges to ignore the initial race-linked opportunity gap between applicants,” Jackson writes, “will inevitably widen that gap, not narrow it. It will delay the day that every American has an equal opportunity to thrive, regardless of race.
SFFA similarly asks us to consider how much longer UNC will be able to justify considering race in its admissions process. Whatever the answer to that question was yesterday, today’s decision will undoubtedly extend the duration of our country’s need for such race consciousness, because the justification for admissions programs that account for race is inseparable from the race-linked gaps in health, wealth, and well-being that still exist in our society.”
Jackson cites at length the numerous disparities that still exist, especially in health: “Black mothers are up to four times more likely than White mothers to die as a result of childbirth. And COVID killed Black Americans at higher rates than White Americans.” She adds: “Beyond campus, the diversity that UNC pursues for the betterment of its students and society is not a trendy slogan. It saves lives. For marginalized communities in North Carolina, it is critically important that UNC and other area institutions produce highly educated professionals of color.
Research shows that Black physicians are more likely to accurately assess Black patients’ pain tolerance and treat them accordingly (including, for example, prescribing them appropriate amounts of pain medication). For high-risk Black newborns, having a Black physician more than doubles the likelihood that the baby will live, and not die. Studies also confirm what common sense counsels: Closing wealth disparities through programs like UNC’s—which, beyond diversifying the medical profession, open doors to every sort of opportunity—helps address the aforementioned health disparities (in the long run) as well.
Do not miss the point that ensuring a diverse student body in higher education helps everyone, not just those who, due to their race, have directly inherited distinct disadvantages,” Jackson writes. She later lambasts the Court for what she deems an unrealistic “colorblind” approach: “With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat. But deeming race irrelevant in law does not make it so in life.”