An End to Affirmative Action
July 2023 | Mary Giandjian, Kira Kramer (Staff Writers & Editors)
The June 29th SCOTUS decision of Students for Fair Admissions (SFFA), Inc v. President and Fellows of Harvard College striking down affirmative action brought forth nationwide controversy regarding the basis of discrimination. The end to affirmative action, a government-approved and voluntary private program granting opportunities to minorities, alters the path and definition of legal discrimination defined in previous SCOTUS decisions. Furthermore, the Court’s opinion delivered on June 29th, 2023 was divided among a majority, a concurring, and a dissenting opinion. The varying conclusions drawn by SCOTUS, while a current topic of discussion for the American public, can be clarified with historical relevance and current implications.
An assessment of the recent decision must first recognize the program now struck down, affirmative action. Affirmative action itself is a proactive devotion of resources in order for individuals and groups to not be discriminated against on the basis of gender or ethnicity. However, with regards to the education sector, affirmative action takes place in the college admission process as institutions consider an applicant’s race to be a “plus factor.” [1] Meaning, the race-sensitive college admission process, while evaluated on academic, extracurricular, and personal criterion, has also allowed applicants’ status based on race.
The admission process of Harvard College, for example, was detailed in the opinion of the Court delivered for Students for Fair Admissions, Inc v. President and Fellows of Harvard College (2023). Every received application is “screened by a ‘first reader,’” who will assign the applicant a score in six categories: academic, athletic, extracurricular, school support, personal, then overall. [2] Ratings range “1” to “6,” one being the best and six being the worst an applicant can receive. A rating of “1” signifies, for example, perfect standardized test scores or “truly unusual achievement” in extracurriculars. [3] After the application is first read, the application is forwarded to a subcommittee, then to the full committee of forty members. The opinion of the Court writes, “at the end of the full committee meeting, the racial composition of the pool of tentatively admitted students is disclosed to the committee.” [4] Student admission is concluded at the “lop” stage in which the final cut is made, considering “legacy status, recruited athlete status, financial aid eligibility, and race.” [5] The duration of Harvard College’s admissions emphasizes race as a determining factor, especially for African American and Hispanic applicants. [6]
Before addressing the majority and dissenting opinions of the Court, there are several relevant cases that informed the precedent and shaped the Court’s decisions. The cases and legislation most relevant to both the majority and minority opinions include the Equal Protection Clause of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964, Plessy v. Ferguson (1896), Brown v. Board of Education (1954), Regents of Univ. of Cal. v. Bakke (1978), and Grutter v. Bollinger. Understanding the precedent set in these cases, as well as their implications for how the law has progressed since then, is integral to understanding how the concurring and dissenting opinions were formed.
While highlighting the case of Harvard College, the opinion also references the matter of the Students for Fair Admission, In. (SFFA) against the University of North Carolina (UNC), a case in which the applicant’s race is a factor of consideration. As such, the main constitutional issues at hand in Students for Fair Admissions, Inc (SFFA) v. President and Fellows of Harvard College (2023) and Students for Fair Admissions v. University of North Carolina (2023) is whether or not Harvard and UNC violated the Equal Protection Clause of the 14th Amendment and Title VI of the Civil Rights Act of 1964. The Equal Protection Clause explains that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” [7] Similarly, Title VI of the Civil Rights Act of 1964 demands that “no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” [8] The Court’s precedence asks that laws “operate equally upon all.” [9] The opinions analyze if and or how these elite universities’ admissions programs violated these legal statutes.
Outside of the statutes being contested, there are many issues of case law that pertain to the Court's decision and provide context and precedence for legal analysis. In Plessy v. Ferguson (1896), the Court upheld the “Separate Car Act”, which insisted that 14th Amendment established equality of the races, but “held that separate treatment did not imply the inferiority of African Americans.” [10] While the Court has expressed grievance over this falsely “color-blind” decision, it is applicable to the decision about admissions procedures in deciding whether or not affirmative action perpetuates race-based separation. Brown v. Board of Education (1954) then reversed the precedent set in Plessy when it was determined that “separate but equal” educational facilities created for African Americans were unequal and in violation of the Equal Protection Clause of the 14th Amendment. [11] These two decisions provide context in which the Court deems affirmative action to be an appropriate or inappropriate course of action under the guise of the Constitution.
Understanding the specifics of the legality of affirmative action can first be identified in Regents of Univ. of Cal. v. Bakke (1978). Interestingly enough, there was no majority opinion decided for this case. By and large, the Court looks to Justice Lewis F. Powell’s decision when deciding the constitutionality of affirmative action. Powell argued that the rigid use of racial quotas employed by the school did indeed violate the Equal Protection Clause, but Powell joined the opinion of four other justices in saying that the use of race as a “criterion in admissions decisions was constitutionally permissible.” [12] This case allows affirmative action only where the school’s interest is sufficiently compelling and constitutionally permissible. The most compelling interest found by Justice Powell in this case was “obtaining the educational benefits that flow from a racially diverse student body.” [13] This case also mandated that race “could operate only as a ‘plus’ in a particular applicant’s file” and that it must be “flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant.” [14] Regardless, lower courts struggled in legal decisions around affirmative action when the Supreme Court had supplied such a fractured decision, as described in the majority opinion delivered by Chief Justice Roberts. [15]
Despite the Bakke ruling, the matter pursued nonetheless in Grutter v. Bollinger (2003). In this case, the Court endorsed Justice Powell’s view and provided that universities were allowed affirmative action, but were limited in the means in which they could pursue it. The school could not “establish quotas for members of certain racial groups or put members of those groups on separate admissions tracks,” “insulate applicants who belong to certain racial or ethnic groups from the competition for admission;” nor could it desire for “some specified percentage of a particular group merely because of its race or ethnic origin.” [16] These specifications aimed at preventing two dangers: illegitimate stereotyping and the idea that race would be used not as a plus, but as a negative to discriminate against the racial groups that were not the beneficiaries of race-based preference. [17] Lastly, Grutter suggested that race-based admissions programs must end. It insinuated that race based preferences should end within 25 years from which Grutter was decided, which would be around the year 2028.
Fisher v. University of Texas is another integral case that set precedent for affirmative action. In this case, Abigail N. Fisher, a Caucasian female, applied to the University of Texas in 2008. At this time the University of Texas implemented specific policies around race-based admissions policies. The policies in place admitted all students in the top ten percent of their in-state high school class regardless of race. Any student not in the top ten percent would be subject to policy that considered race as a factor. Fisher was not in the top ten percent of her class and the University of Texas denied Fisher's application. [18] The Court ruled in favor of Fisher stating that the lower courts did not “verify that the University policy in question was necessary to achieve the benefits of diversity and that no race-neutral alternative would provide the same benefits.” [19] This case did not overturn the precedent set in Grutter but augmented it by saying that such cases are reviewable under the Fourteenth Amendment. However, they must be reviewed under a standard of strict scrutiny to determine whether the policies are “precisely tailored to serve a compelling governmental interest.” [20] They did not rule on the constitutionality of affirmative action in this case, but set parameters that the policies must be guided by a compelling interest, which has been determined by Justice Powell’s opinion.
The majority opinion for Students for Fair Admissions, Inc v. President and Fellows of Harvard College (2023) was written by Chief Justice Roberts, and joined by Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. The majority opinion ruled to overturn affirmative action using four main reasons: that affirmative action 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 endpoints'' which stand in violation of the demands set in Grutter. [21] The Court felt that Harvard and UNC’s identified goals and benefits pertaining to the use of affirmative action were not compelling enough to be subjected to meaningful judicial review. These goals were as follows: (1) “training future leaders in the public and private sectors;” (2) preparing graduates to “adapt to an increasingly pluralistic society;” (3) “better educating its students through diversity;” and (4) “producing new knowledge stemming from diverse outlooks.” [22] UNC provided similar goals. The Court felt that these goals were not measurable nor sufficient.
Therefore, SCOTUS concluded that the holistic approach by admissions programs fail to establish a meaningful connection between the means in which they employ their program and the goals they pursue in turn employing race in a negative manner. The Court argues that Harvard’s race categories are overbroad or underinclusive which the Court feels undermines the respondents’ goals of being “broadly diverse.” Similarly, the Court believes that, by accepting race-based admissions programs in which some students may obtain preferences on the basis of race alone, the programs would tolerate stereotyping. They believe that the universities may not operate programs on the belief that “minority students always (or even consistently) express some characteristic minority viewpoint on any issue.” [23] Justice Roberts argues that when a university admits students on the basis of race, that they are assuming that students of a particular race think alike. [24] They claim that Harvard’s admissions program rests on the idea that a minority student usually brings something that a white person cannot offer, rather than by the student’s own merit or essential qualities. Lastly, because Grutter specified that affirmative action must have an end in sight, Harvard’s admissions program lacks a “logical end point.” [25]
Conversely, the dissent focuses on the protections that the Fourteenth Amendment does secure, as well as the subsequent decisions in Brown. Justice Sotomayor produced the dissent with whom Justices Kagan and Jackson joined. The dissent begins with a detailed history of the discriminatory practices upheld by the United States since the country's founding, as well as heinous laws that perpetuated such inequities. Sotomayor explained that the ruling in Brown itself was a “race-conscious decision” decided unanimously by the Court that emphasized the importance of equitable education in American society. When Brown was first decided, many following desegregation cases aimed at achieving an educational system that ensured racial equal opportunity. Even after the doors were opened for children to attend all schools on a race-blind basis, de facto segregation still persisted when students of any particular race did not leave the school systems they were previously attending (noting that 85% of Black children in the school system were still attending an all-Black school). [26] The Court upheld in several court cases that “affirmative steps are constitutionally necessary when mere formal neutrality cannot achieve Brown’s promise of racial equality.” [27] The dissent argues that racial “indifference” is not enough, and that the ultimate goal is racial equality of opportunity.
Furthermore, in the Fisher litigation, the Court twice reaffirmed that a limited use of race in college admissions is constitutionally permissible if it satisfies strict scrutiny. When universities pursue racial diversity, as well as the dissemination of knowledge and opportunity, it acts as a compelling interest in student body diversity that is grounded in the Court's equal protection jurisprudence. [28] The majority claimed that the dissenting “uphold[s] respondents’ admissions programs based on their view that the Fourteenth Amendment permits state actors to remedy the effects of societal discrimination through explicitly race-based measures''. [29] In response, the dissenting then references statistics that refute the majority’s claim by providing that affirmative action is not a remedy to past societal discrimination, but rather to address current societal discrimination that is perpetuated today.The dissent cites statistics explaining that, today, half of all Latino and Black students attend racially homogenous schools with a 75% minority enrollment, and schools with 90% to 100% minority student enrollment are on the rise. [30]
Coupled with tax-based school system funding and residential segregation, minority communities often have less robust school systems and fewer educational opportunities. In North Carolina, where UNC is located, racial minorities are disproportionately affected by a lack of equal access to educational opportunities, which results in fewer underrepresented students applying to university, let alone elite universities like UNC and Harvard. Black and Latino applicants combined only account for 20% of domestic applicants each year, and that does not reflect the percentage of students that are accepted. The dissent cites statistical analysis from the Court of Appeals describing how race representation has increased over time at Harvard, including in the Asian community, since the implementation of affirmative action. More specifically, “the admission rates of Asian Americans at institutions with race-conscious admissions policies, including at Harvard, have ‘been steadily increasing for decades.’’ [31]
The same data was used to discuss the ramification of eliminating affirmative action which would at times cut the underrepresented minority population by up to 72%. This is supplemented by the data from California showing the rates of admitted minority students at elite and non-elite universities in the state before and after the prohibition of race-conscious admissions in 1996. The chart developed and cited by the majority does not consider the number of applicants from each racial group that applied, rather, just the statistics of those that were accepted. This fails to compare the size of the application pool of each minority group proportionate to the amount that was accepted from those groups, which the dissent claims omits the relevant data in the record, is misleading and ignores broader context.
This Court’s decision has overturned decades of precedence and redefines racial segregation in the eyes of the law. Justice Thomas equates affirmative action in higher education with segregation, arguing that it denotes Black and Latino students as inferior. The dissent refutes this argument, saying that this is Justice Thomas’s own stigma, and cites research that studied “seven law schools showing that stigma results from “racial stereotypes that have attached historically to different groups, regardless of affirmative action’s existence.” [32] Associating race-conscious admissions policies with segregation trivializes the horrific effects of segregation and threatens the transformative legacy of Brown.
The Equal Protection Clause evidently proves to hold a significant role in the application of case law in the opinions delivered by the Court, making clear the differences in each Justices’ interpretation. The majority opinion delivered by Chief Justice Roberts, which notably opposed Harvard’s application of affirmative action, maintained the position that the admissions process in which Harvard applicants underwent was, in fact, a violation of the Equal Protection Clause of the 14th Amendment. Before the opinions were delivered, the case syllabus establishes that, “eliminating racial discrimination means all of it,” and cites Yick Wo v. Hopkins (1986), “the Court has held that the Equal Protection Clause applies ‘without regard to any differences of race, of color, or of nationality’– it is ‘universal’ in [its] application.” [33] Per Justice Roberts, the lack of “sufficiently focused and measurable objectives,” the negative employment of race, and racial stereotyping that maintained affirmative action’s legality were unquestionable violations of the Equal Protection Clause. Furthermore, Roberts emphasizes differential treatment of individuals on the basis of skin color, be it within an admissions process or not, is an insult to the individual’s “merit and essential qualities,” and violates the Equal Protection Clause. [34] By the majority, Harvard’s use of race qua race– race for race’s sake– allows selective benefits and resulted in the reversal of Grutter. The dissent as presented by Justice Kagan and Sotomayor showcased an undeniably contrasting application of equal protection, who wrote of Roberts’ application to be “not only contrary to precedent and the entire teachings of our history ... but is also grounded in the illusion that racial inequality was a problem of a different generation". [35]
The matter of affirmative action proves itself to have both a demanding, as well as problematic history in the United States. The majority opinion served by Chief Justice Roberts makes note that institutions often assume that a student of one demographic, a black student for example, offers a characteristic that another demographic cannot. The attempts institutions make to remedy “societal discrimination” can no longer include race as one of multiple determining variables, though students are permitted to a discussion of “how race affected his or her life.” [36] The program’s subsequent end leaves inquiry to the future of post-secondary education, and what means institutions who have previously applied affirmative action will now utilize. Since the SCOTUS decision, Michael Drake, the president of the University of California (UC) system, described affirmative action as a “valuable practice that has helped higher education institutions increase diversity and address historical wrongs over the past several decades." [37] Ron Daniels, president of John Hopkins University, details the ruling as a "significant setback in our efforts to build a university community that represents the rich diversity of America." [38]
Discussion of the future of higher education in the U.S. must also acknowledge the demographics impacted by the Students for Fair Admissions, Inc v. President and Fellows of Harvard College decision. By expanding the legal definition of race-segregation, SCOTUS has overturned the argument of affirmative action serving to be a remedy. Public opinion, however, has been sporadic regarding the matter. “Soft” forms of affirmative action take preference over “hard” forms, such as programs where race and gender is a tiebreaking factor. [39] For upcoming students, the question of admissions is argued by some to now hold more of a subjective value. With the absence of race as a consideration, the Court suggests that students will be evaluated with more of an emphasis on academic, extracurricular, and personal achievements.
Sources
Crosby, Faye J., Aarti Iyer, and Sirinda Sincharoen. “Understanding Affirmative Action | Annual Review of Psychology.” Annual Reviews, January 10, 2006.
“Students for Fair Admissions, Inc. v. President and Fellows of Harvard College”, 600 U.S. __ (2023).
Ibid.
Ibid.
Ibid.
Ibid.
“Fourteenth Amendment Equal Protection and Other Rights.” Constitution Annotated. Accessed July 15, 2023.
“Title VI, Civil Rights Act of 1964.” Office of the Assistant Secretary for Administration & Management. Accessed July 15, 2023.
“Students for Fair Admissions, Inc. v. President and Fellows of Harvard College”, 600 U.S. __ (2023).
“Plessy v. Ferguson”, 163 U.S. 537 (1896). Oyez. Accessed July 15, 2023.
“Brown v. Board of Education of Topeka”, 347 U.S. 483 (1954). Oyez. Accessed July 15, 2023.
Ibid.
“Students for Fair Admissions, Inc. v. President and Fellows of Harvard College”, 600 U.S. __ (2023).
Ibid.
Ibid.
“Students for Fair Admissions, Inc. v. President and Fellows of Harvard College”, 600 U.S. __ (2023).
Ibid.
“Fisher v. University of Texas”, 570 U.S. 297 (2013). Oyez. Accessed July 16, 2023.
Ibid.
Ibid.
Ibid.
Ibid.
“Grutter v. Bollinger”, 539 U.S. 306 (2003).
“Students for Fair Admissions, Inc. v. President and Fellows of Harvard College”, 600 U.S. __ (2023).
“Grutter v. Bollinger”, 539 U.S. 306 (2003).
“Students for Fair Admissions, Inc. v. President and Fellows of Harvard College”, 600 U.S. __ (2023).
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Singh, Simrin. “Harvard, Universities across U.S. React to Supreme Court’s Affirmative Action Ruling.” CBS News, June 30, 2023.
Ibid.
Crosby, Faye J., Aarti Iyer, and Sirinda Sincharoen. “Understanding Affirmative Action | Annual Review of Psychology.” Annual Reviews, January 10, 2006.