Salvo 06.30.2023 10 minutes

Ending, or Punting, on Affirmative Action?

Supreme Court

The Supreme Court’s decision on race-based preferences is written in disappearing ink.

At least for now, the Supreme Court has outlawed the use of race as a factor in university admissions. Yet, there is a distinct chance that, because of its failure to overtly overrule previous affirmative action cases, the majority has set us up for disappointment within a few years.

First, the good news. In a 6-3 decision in Students for Fair Admissions (SFFA) v. Harvard College, Chief Justice John Roberts took a wrecking ball to every argument proffered by Respondents, Harvard and the University of North Carolina, to support their use of race as a factor in admissions. In an occasionally acerbic opinion, Roberts also castigated Justice Sonya Sotomayor’s dissent as “remarkably wrong” and accused Justice Ketanji Brown Jackson’s dissent of “blink[ing] reality.”

Though SFFA challenged the affirmative action programs at Harvard and UNC under both Title VII of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment, the appeal focused only on the Equal Protection Clause, which provides that no State shall “deny to any person . . . the equal protection of the laws.”

The Court first determined that the Equal Protection Clause applies to UNC, a state university, and Harvard, which accepts federal funding, and that race was a significant factor in their admissions processes.

The decision then reviewed the legislative history of the Fourteenth Amendment and nearly 150 years of generally consistent Court precedent to compellingly support the traditional view that the Equal Protection Clause prohibits the use of race by government, without any distinction between whether the beneficiary, or victim, is white, black, or another race.

Roberts quoted members of Congress involved in drafting or enacting the Fourteenth Amendment, including one who considered the Equal Protection Clause a “foundation[al] principle” for “the absolute equality of all citizens of the United States politically and civilly before their own laws,” and another who wrote that in passing the Fourteenth Amendment, Congress determined that the Constitution, “should not permit any distinctions of law based on race or color,” because any “law which operates upon one man [should] operate equally upon all.” Soon-to-be President James Garfield observed that the Fourteenth Amendment would hold “over every American citizen, without regard to color, the protecting shield of law.”

A decade after ratification of the Fourteen Amendment, in Strauder v. West Virginia (1880), the Supreme Court declared the purpose of the Equal Protection Clause to be that “the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States.”

After characterizing Plessy v. Ferguson (1896), which permitted “separate but equal,” as a pernicious aberration, Roberts explained that Brown v. Board of Education (1954), which overturned Plessy, put the Court “firmly on the path of invalidating all de jure racial discrimination by the States and Federal Government,” when it held that “no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.” Roberts observed that after Brown, the Court routinely invalidated race-based state action.

Citing Supreme Court precedents, Roberts opined: “Eliminating racial discrimination means eliminating all of it. And the Equal Protection Clause, we have accordingly held, applies without regard to any differences of race, of color, or of nationality—it is universal in its application. For the guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal.”

In his concurring opinion, Justice Clarence Thomas strongly supported Roberts with an extensive analysis of the passage of the Fourteenth Amendment, laws enacted by Congress and the states following the Civil War, and Court precedent.

The impartiality of the Fourteenth Amendment was breached when a “fractured” Supreme Court wrestled with Regents of Univ. of Cal. v. Bakke (1978), its first case involving affirmative action in university admissions. Refined by a series of affirmative action cases over the next 35 years, the Court applied a review standard referred to as “strict scrutiny” to permit the use of race as a factor in admissions to achieve what became known as the “compelling interest” of diversity, but only if there was no other alternative that could achieve that result. Further, the use of race had to be “narrowly tailored” to achieve the result. Quotas and numerical goals were prohibited, including matching the racial composition of the students to the racial makeup of the community, or applicant pool. A university’s use of race could not “unduly harm nonminority applicants.” Further, in Grutter v. Bollinger (2003), the Court also “required” that race-conscious admission programs must be limited in duration.

Roberts explained that outside of “diversity,” the Supreme Court has identified only two compelling interests that permit race-based government action: remediating specific, identified instances of past discrimination, and avoiding imminent and serious risks to human safety in prisons, such as a race riot.

Accordingly, race-based admissions are permissible only within narrow restrictions, and the Court held that that “Respondents’ admissions systems … fail each of these criteria. They must therefore be invalidated under the Equal Protection Clause of the Fourteenth Amendment.” The opinion listed five criteria violated by Harvard and UNC:

First, Respondents failed to operate their race-based admissions programs in a manner that is “sufficiently measurable to permit judicial [review]” under… strict scrutiny. The Court found that the interests Respondents view as compelling, such as training future leaders, acquiring new knowledge based on diverse outlooks, promoting a robust marketplace of ideas, and preparing engaged and productive citizens, “are not sufficiently coherent for purposes of strict scrutiny” because progress to the goals cannot be measured.

Second, Respondents’ admissions programs “fail to articulate a meaningful connection between the means they employ and the goals they pursue.” Respondents measure the racial composition of their classes using racial categories that are overbroad, such as combining South and East Asians; arbitrary or undefined, such as “Hispanic”; or underinclusive, such as excluding Middle Easterners.

Third, because Respondents’ race-based admission systems resulted in fewer admissions of Asian-Americans and whites, and because admission is zero sum in which admitting one individual because of race necessarily results in excluding another from a different race, Respondents’ race-based admissions systems failed to comply with the Equal Protection Clause’s requirement that race may never be used as a “negative.”

Fourth, when a university admits students on the basis of race, “it engages in the offensive and demeaning assumption that [students] of a particular race, because of their race, think alike.” As Respondents admit, the point of their admissions programs is that there is an inherent benefit in race for race’s sake. Such stereotyping is contrary to the “core purpose” of the Equal Protection Clause.

Fifth, Respondents’ admissions programs lack a “logical end point” as Grutter “required.” Respondents suggest that the end of race-based admissions programs will occur once meaningful representation and diversity are achieved, but “outright racial balancing” is “patently unconstitutional.” The fact that, as suggested in Grutter, Respondents frequently review their conduct to determine whether racial preferences are still necessary doesn’t make unconstitutional behavior constitutional.

The Court acknowledged that universities may, however, consider how an applicant’s race affected the applicant’s life. Rebuking Sotomayor, whose dissent included suggestions on how a university might work around the Court’s decision, Roberts then warned: “[D]espite 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.”

The Bad News

Now, the bad news. As sweeping as the Court’s decision appears, I largely agree with Sotomayor’s observation that:

It is a disturbing feature of today’s decision that the Court does not even attempt to make the extraordinary showing required by stare decisis. The Court simply moves the goalposts…. In the end, however, it is clear why the Court is forced to change the rules of the game to reach its desired outcome: Under a faithful application of the Court’s settled legal framework, Harvard and UNC’s admissions programs are constitutional and comply with Title VI of the Civil Rights Act of 1964.

The driving mantra in the Court’s decision is that it applies established law to the facts, and in so doing is not overruling established precedent. This is sophistry. As recently as 2013, a 7-1 majority in Fisher v. University of Texas at Austin found that an affirmative action plan that suffered many of the defects in the Harvard and UNC admissions programs did not violate the Equal Protection Clause. It is implausible that there is any material difference between affirmative action plans permitted by prior Supreme Court decisions and the Harvard or UNC plans with respect to the factors listed above, with the possible exception of end date.

Further, Roberts overstates the purported Grutter “requirement” that affirmative action plans come to an end at any specific date, let alone 25 years. It is true that in Grutter, Justice Sandra Day O’Connor wrote there is a “requirement that all race-conscious admissions programs have a termination point” and she discussed sunset provisions; but she also opined that “periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity” would be acceptable. Herreference to 25 years is aspirational. She wrote: “It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

Citing Grutter, the Court comes close to holding that race-based admissions programs must now end. But it doesn’t quite do so. Rather, the Court holds that Harvard’s and UNC’s offense is that they do not identify an end date, or a mechanism to get there. That may be within Grutter’s intention.

I fear that Sotomayor is correct that a prior Court would have found the Respondents’ programs sufficiently similar to numerous affirmative action programs that survived challenge. In his concurrence, Thomas captures my concern by observing: “The Court today makes clear that, in the future, universities wishing to discriminate based on race in admissions must articulate and justify a compelling and measurable state interest based on concrete evidence. Given the strictures set out by the Court, I highly doubt any will be able to do so.”

After presenting a compelling argument for the purpose of the Fourteenth Amendment, the stark difference between exceptions for jail riots or to cure a specific discriminatory action, and mere “diversity,” and establishing the Bakke-Fisher cases are contrary to the Equal Protection Clause, the majority is so intent on claiming that it is adhering to stare decisis that it does not admit what it is actually doing—overruling the Bakke-Fisher line of cases. In the Supreme Court, that is a distinction with a difference.

Quite aside from universities that will take Sotomayor’s advice on how to end-run this decision, or will disregard it in the expectation that it will languish unenforced by progressive governors and the Biden Department of Justice, all it may require is lip service to an end date for a court to rule the other way. Even without that lip service, the next time the Supreme Court has a majority of liberals, they could fairly argue that the Roberts court misinterpreted Grutter, and continue to apply the Bakke-Fisher precedents.

The dissents are ample evidence that the SFFA decision may have a short life. Jackson’s dissent is more like an Ibram X. Kendi essay than a constitutional analysis. She presents a cartoonish, stereotypical comparison of an affluent white applicant who would be the seventh generation to graduate from UNC, and an impoverished, black applicant who would be the first, and focuses only on group averages, rather than individuals. Sotomayor’s dissent promotes the Left’s view that the Fourteenth Amendment protects only blacks, shows indifference to whites and Asians, and asserts that so-called experts should decide what is good for us.

The Roberts Court should have overruled the Bakke-Fisher line of affirmative action cases. It won’t be very long before those of us opposed to race-based government action look back at this decision as a terrible lost opportunity.

The American Mind presents a range of perspectives. Views are writers’ own and do not necessarily represent those of The Claremont Institute.

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