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SCOTUS Undoes Two Decades of Affirmative Action

Supreme Court Rules Affirmative Action Is Unconstitutional In Landmark Decision
By Michael DeRienzo, Esq. and Vaidehi Mehta, Esq. | Last updated on

The Greek philosopher Aristotle once said, “[t]he educated differ from the uneducated as much as the living from the dead." The discussions surrounding education and its value have been hotly debated among humankind's greatest thinkers for at least two millennia, and they'll probably continue for as long as we as a species exist. Plato's pupil may have been a little biased, but whether or not you think formal education is important, you'll probably agree it can make a big difference in shaping the rest of one's life. Those with such advantages are often more poised to succeed — at least economically — than those without.

But what should decide who receives these intellectual advantages? What factors should decide that one teenager receives all the benefits of the academic world while another struggles to access a formal education? Should it be their grades? How much money their parents are willing to pay? Their ability to throw a tight spiral?

For a long time in the history of the United States — and just up until last week — one of those factors was race. But last Thursday, in a case called Students for Fair Admissions v. President and Fellows of Harvard College, the Supreme Court ruled that using race as a factor in the admissions process violated the Fourteenth Amendment of the U.S. Constitution. In a landmark decision that will surely be cited in lawsuits for years to come, SCOTUS has changed the course of education in the United States. In issuing this ruling, the Court has suddenly made illegal affirmative action in a decision that binds nearly every university in the nation.

Background on Admissions Programs

If you've applied to college, you'll know it's one hell of a ride — and not a very fun one. On top of the never-ending paperwork and prep, there's a lot at stake: potentially, your entire future. Such environments breed fierce competition, and it's no surprise that affirmative action has been a hot-button issue within SCOTUS for decades.

The case that was the namesake of the Supreme Court decision was actually a two-part case, where a lawsuit against Harvard was heard and decided together with a similar "companion case" against the University of North Carolina, Students for Fair Admissions v. University of North Carolina. As you may know, Harvard and UNC are excellent academic institutions and highly selective in admitting students. Their admissions processes include considering several elements, from the students' high school grades, extracurricular activities, recommendation letters — oh, and race.

At Harvard, for example, an initial screening is conducted by an admissions officer who assigns a score from 1 to 6 for the applicant in each of six categories: "academic," "extracurricular," "athletic," "school support," "personal," and "overall." The "overall" category is composed of five different subcategories. While Harvard says its admissions officers are not to consider race as a factor when evaluating the "personal" category, they can and do take race into account for the "overall" category. At that stage, applicants of certain races may receive an extra "tip" in their favor. The admissions process continues through various committees and subcommittees, which also consider race. At the final stage, there is a trimming process in which the committee can consider factors such as race in deciding who to "lop off" from the pool of admitted students.

UNC's admissions process is effectively similar. It also has an initial screening by an officer who assigns a numerical rating to each applicant based on various categories, and they are required to consider race as a factor. They then make a written recommendation on each application, where they may give any given applicant a "substantial plus" based on racial considerations. And in the final group review by a committee of experienced staff members who either approve or reject each recommendation, the committee may consider the applicant's race.

According to the deposition of Harvard's director of admissions, the Ivy's admissions process aims to ensure no significant "drop-off" in minority admissions rates from one year to the next. Although there are no quotas for subcategories of admitted students, if the admissions committee finds a big drop in a certain underrepresented demographic, they can give additional attention and preference to that group. And the process is effective; an investigation at trial found that at least 10% of Harvard's admitted class wouldn't have been admitted without the race-conscious admissions process.

But the process doesn't affect all minorities in the same way. It was found that Black and Hispanic students are the "primary beneficiaries" of the process. At the same time, the Court found that Asian Americans are "clear losers," as they (along with White students) do not receive a race-based tip in their favor.

Equal Protection and Race

Now for a quick refresher on the long and fraught history of using race in educational policy.

Because the use of racial distinctions to benefit or harm a particular group is presumed to be pretty suspect (under what courts call "strict scrutiny"), their use must be "narrowly tailored" to serve a "compelling government interest." These are some of SCOTUS's favorite catchphrases under Fourteenth Amendment law and in other areas such as First Amendment freedom of speech. If all that language sounds intimidating, a simple way to summarize it would be: we automatically assume that using race (or ethnicity or national origin) as a basis for a policy is a no-no, so if someone (like a university) wants to do this, they had better have a pretty good reason (such as promoting diversity) and do it in the least disruptive way possible.

You'll be familiar with these principles, at least from the days of Plessy v. Ferguson, when SCOTUS created its infamous "separate but equal" justification to segregate based on race, which it (thankfully) walked back in Brown vs. Board of Education. Based on many of the same principles, the decision in Students for Fair Admissions will require a major upheaval in many admission processes across the country.

The Harvard and UNC cases are not SCOTUS's first affirmative action rodeo. The Fourteenth Amendment has long been used in deciding issues around affirmative action (read our summary of such cases here.) The Highest Court in the Land first considered the issue in the late 70s, in the landmark case of Regents of the University of California v. Bakke. You can read a summary of that decision here, but that case, too, was deeply splintered and produced six different opinions.

In the narrow 5-4 majority, the Bakke court ruled that admissions quotas (UC Davis had a 16% minority quota for its med school) constituted "reverse discrimination" and violated Equal Protection. However, the court allowed schools to continue using race as one factor in admissions decisions. Race could not be a qualification for admissions, but racial diversity could be a goal — and of course, this goal necessitates considering a student's race. But the court noted that racial and ethnic distinctions in admissions processes are "inherently suspect." As such, race could only operate as a "plus" for a given applicant, and even then, it had to be weighed in a manner "flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant." In other words, while student body diversity was a constitutionally permissible goal for schools, diversity is broader than just racial diversity.

Bakke was an important decision but not necessarily an easy one to follow. It wasn't entirely clear whether the majority opinion was binding precedent. Then, in 2003, SCOTUS handed down the decision of Grutter v. Bollinger, which strengthened the rule from Bakke by echoing the sentiment that "student body diversity is a compelling state interest that can justify the use of race in university admissions." Grutter also reemphasized the importance of limiting how schools can use race in admissions consideration. The Court explained that these limits were necessary to guard against "illegitimate stereotyping" or stereotyping against racial groups not benefiting from affirmative action.

Challenging Two Decades of Precedent

Whatever limitations they imposed, Bakke and Grutter did the very important job of establishing that affirmative action (of some degree) was allowed under the Constitution. That principle stayed more or less intact for 20 years, and many universities throughout the country used those decisions to justify affirmative action policies in admissions and scholarships. But those policies were always subject to challenge by students who felt they'd gotten the short end of the stick when it came to admissions advantages.

Nearly a decade ago, Students for Fair Admissions (SFFA) filed lawsuits against Harvard University and the University of North Carolina, challenging the schools' admissions processes and arguing that they were unconstitutional. SFFA is a non-profit organization with a stated mission of defending civil liberties of all by ensuring equal protection under the law. SFFA argued that each of the two schools' admissions processes violated the Equal Protection Clause of the Fourteenth Amendment, as well as Title VI of the Civil Rights Act of 1964. (We won't get into a discussion of the Title VI argument, because the Supreme Court doesn't, either. All you really need to know is that for purposes of affirmative action, the Court essentially treats the two legal theories as one and the same. Therefore, answering the Equal Protection argument more or less answers the Title VI argument.)

In the Harvard case, the trial at the federal district court lasted 15 days. The jury ultimately sided with Harvard, and the First Circuit Court of Appeals affirmed that decision. Similarly, in the UNC trial, the district court found in favor of the University after eight days of trial. The Supreme Court agreed to take that case up before the Fourth Circuit Court of Appeals decided since the Harvard case was already pending (this tends to happen when similar cases come up around the same time, as it's easier to decide the issue together and once and for all). The question for SCOTUS was whether the admissions systems used by Harvard College and UNC are lawful under the Equal Protection Clause of the Fourteenth Amendment.

SCOTUS's New Decision: Politically Predictable

Chief Justice John Roberts wrote for the majority in the 6-2 decision reversing the decisions in the lower courts (Justice Ketanji Brown Jackson recused herself in the Harvard decision because she had previously sat on Harvard's board of overseers).

The majority found that making an admissions decision based on a student's race contradicted the Constitution's guarantee that everyone should be treated equally, regardless of race. Roberts opined that the guarantee goes both ways. While the Fourteenth Amendment protects students from being discriminated against based on their race, the other side of the Equal Protection coin forbids students from being "rewarded" based on their race, too. He concluded his decision by stating that any given student "must be treated based on his or her experiences as an individual — not on the basis of race."​

Remember, the court's makeup has changed significantly since Grutter and Bakke were decided. SCOTUS lost justices like Ginsburg (a pretty clear-cut liberal) and O'Connor and Souter (who, despite being appointed by Republican presidents, often aligned with the more liberal justices on decisions, including in Grutter). Even though judges are supposed to be politically neutral, given the pretty predictable pattern of the current Supreme Court's voting based on party ideology, it should surprise no one that the most conservative justices were in the majority.

On the flip side, the three dissenting justices were, of course, the liberals. Justices SotomayorKagan, and Jackson (for the UNC case only) disagreed with the majority and argued that using race-conscious policies is the only way to ensure that the Equal Protection Clause is honored in college admissions. A bit out of character (the conservative justices, rather than the liberals, are usually associated with sticking to stare decisis guns), it was Sotomayor that pointed out that the majority "does not even attempt to make the extraordinary showing required by stare decisis" but rather "simply moves the goalposts, upsetting settled expectations and throwing admissions programs nationwide into turmoil." She concluded her dissent by warning that “[t]he majority's vision of race neutrality will entrench racial segregation in higher education because racial inequality will persist so long as it is ignored."

What's Next for Student Diversity?

To those familiar with the Court's previous decisions, the vast difference between the majority and minority opinions is nothing new. In his law review article for the University of Houston Law Center, Professor Ronald Turner highlighted these two differing opinions through two notable quotes from previous case opinions:

"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

Chief Justice Roberts in the 2007 case Parents Involved in Community Schools v. Seattle School District No. 1

"The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination."

Justice Sotomayor in the 2014 case Schuette v. Coalition to Defend Affirmative Action

Regardless of their personal ideologies, any of the justices would likely agree that the question of race relations in the country and fixing racial tensions (within and outside of the university setting) continues to be a source of confusion that will require fundamental change to improve. While this latest case will have a broad-reaching impact, admissions officers may find that this decision did not actually give a lot of clear guidelines as to exactly what policies are or aren't permissible going forward. Colleges across the country will be faced with navigating that question, and for those that choose to err on the side of caution and avoid similar litigation, we may see the undoing of admissions programs that target minority groups. We may even see race-based scholarships largely uprooted. How this decision impacts the demographics of student bodies of future matriculating classes will likely be in the hands of universities themselves, as it's largely up to them to decide if they want to come up with workarounds and new initiatives to preserve diversity in the face of this new law.

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