by Diane Rufino, July 1, 2023
For too long, many universities have wrongly concluded that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned, but the color of their skin. This Nation’s constitutional history does not tolerate that choice.
As soon-to-be President James Garfield observed: “The 14th Amendment will hold every American citizen, without regard to color or creed, the protective shield of law.” In doing so, Senator Jacob Howard said that the Amendment would give to the humblest, the poorest, the most despised of the race the same rights and the same protection before the law as it gives to the most powerful, the most wealthy, or the most haughty.” As the Court articulated in Brown v. Board of Education: “The fundamental principle in education is that racial discrimination is unconstitutional.” An admission policy that favors certain applicants over others, based in skin color, denies another class of applicants their chance of admission. It’s still discrimination. The US Constitution continues to pledge racial equality.
The core purpose of the Equal Protection Clause of the 14th Amendment is to “do away with all governmentally-imposed discrimination based on race.” The Amendment further guarantees that “the law in all 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.” The clear and central purpose of the Amendment, therefore, was to eliminate all official state sources of invidious racial discrimination in the states.”
Students for Fair Admissions v. Harvard, 600 U.S. ___ (2023), decided last week, is a landmark decision of the U.S. Supreme Court in which the court held that race-based affirmative action programs in college admissions processes violate the Equal Protection Clause of the Fourteenth Amendment. The case is the first high-profile case on behalf of plaintiffs who were not white and who had academic credentials that were much harder to criticize and dismiss. With its companion case, Students for Fair Admissions v. University of North Carolina, the Supreme Court effectively overruled Grutter v. Bollinger (2003) and Regents of the University of California v. Bakke (1978) which validated some affirmative action in college admissions provided that race had a limited role in decisions. The current consolidated case, however, stayed true to the opinion in Brown v. Board of Education, written by Chief Justice Earl Warren in 1954 which, again, held that segregation of races in education violates the equality principle (“all men are equal in the eyes of the law”) articulated in the 14thAmendment.
The group, Students for Fair Admissions (SFA), filed suit in federal court challenging such policies at Harvard University and the North Carolina university system (UNC). They challenged that the policies are unlawful under the Equal Protection Clause of the 14th Amendment, asserting that race-based admissions policies go against the fundamental constitutional promise of equal treatment. “In view of the Constitution, in the eye of the law, there is in this country no superior, dominant, or ruling class of citizens. There is no caste system here. Our Constitution is color-blind and it neither knows nor tolerates classes among citizens.”
The organization (SFA), led by conservative legal strategist Edward Blum, represents a group of anonymous Asian Americans rejected from Harvard. After a brief pause spurred by the Supreme Court’s ruling in Fisher v. University of Texas (2016), the District Court for the District of Massachusetts ruled that Harvard’s admissions process does not discriminate against Asian Americans. SFA petitioned the Supreme Court in 2021; the Supreme Court granted both cases certiorari and consolidated them under Students for Fair Admissions v. Harvard in January 2022, but following the appointment of Justice Ketanji Brown Jackson—a member of the Harvard Board of Overseers at the time—the cases were split with Jackson recusing from the Harvard case while participating in the North Carolina one.
QUESTION PRESENTED TO THE SUPREME COURT:
The question presented is whether the admissions systems used by Harvard College and the UNC college/university system are lawful under the Equal Protection Clause of 14 Amendment.
BACKGROUND:
Affirmative action is a policy aimed at increasing opportunities for people who are underrepresented in certain areas of society. It is based on the use of policies, legislation, programs, and procedures to eliminate, remedy, and prevent discrimination against such groups based on their gender, race, sexuality, creed or nationality. Affirmative action applies to education and employment.
The historical and legal background of the case spans several decades from the 1978 case Regents of the University of California v. Bakke over the 2003 case Grutter v. Bollinger to the 2016 case Fisher v. University of Texas (2016). The U.S. Supreme Court ruled in Regents of the University of California v. Bakke, a 1978 landmark decision, that affirmative action could be used as a determining factor in college admission policy but that the University of California, Davis School of Medicine’s racial quota was discriminatory. The Court upheld this case in Grutter v. Bollinger, a 2003 landmark decision. Concurrently, the Court ruled that the points system used by the University of Michigan to favor underrepresented minorities was unconstitutional in Gratz v. Bollinger. The Court vacated Fisher v. University of Texas (2013) and upheld the lower court’s decision to apply strict scrutiny to the University of Texas at Austin’s race-conscious admissions policy in Fisher v. University of Texas II (2016). In Fisher II, strict scrutiny requires that the use of race serve a “compelling governmental interest”—like the educational benefits that stem from diversity—and be “narrowly tailored” to satisfy that interest. Furthermore, institutions that receive federal funding, such as Harvard University, are subject to Title VI of the Civil Rights Act of 1964, which prohibits racial discrimination.
Affirmative action in the United States is considered to be a wedge issue among Asian Americans, and the practice draws criticism from white and Asian Americans, but support from African Americans and mixed support from Hispanic and Latino Americans. In polling for affirmative action, answers vary depending on how the question is asked, suggesting ambivalence. Among Democrats and Republicans, there is a divide. For example, Chief Justice John Roberts questioned the benefits of diversity in a physics class in Fisher II. Justices Clarence Thomas and Samuel Alito have opposed affirmative action while the remaining three conservative justices had no track record of opposing affirmative action prior to the ruling. Note that in a 1999 article in The Wall Street Journal, Justice Brett Kavanaugh signaled he would end the policy.
SFA filed a lawsuit in federal district court against Harvard University on November 17, 2014, representing a group of anonymous Asian American plaintiffs who had been rejected from Harvard. Although the initial court hearing focused on the issue of discrimination against Asian American applicants, instead of trying to challenge affirmative action in general, by the time it reached the US Supreme Court, the issue became one of the constitutionality of affirmative action in general, in education.
Certain Asian American advocacy groups filed amicus briefs in support of SFFA, believing that they or their children are discriminated against in college admission processes. Other Asian American advocacy groups filed amicus briefs in support of Harvard. On May 15, 2015, a coalition of more than 60 Asian American organizations filed federal complaints with the United States Department of Education and Department of Justice against Harvard University. The coalition asked for a civil rights investigation into what it described as Harvard’s discriminatory admission practices against Asian American applicants. The complaints at the Department of Education were dismissed in July 2015 because a lawsuit making similar allegations had already been filed by Students for Fair Admissions (SFA) in November 2014. However, in 2017, the coalition resubmitted their complaints to the Department of Justice under the Trump administration. The DOJ opened an investigation into allegations against Harvard’s policies and that investigation was ongoing even as late as February 2020.
In the lawsuit, the plaintiffs asserted that Harvard imposes a soft quota of “racial balancing” that artificially depresses the number of Asian-American applicants admitted to Harvard. The plaintiffs maintained that the percentage of Asians admitted to Harvard was suspiciously similar year after year despite dramatic increases in the number of Asian American applicants, as well as the overall increase in the Asian American population. During the lawsuit, the plaintiffs gained access to Harvard’s individualized admissions files from 2014 to 2019 and aggregate data from 2000 to 2019. The plaintiffs also interviewed and deposed numerous Harvard officials. From these sources, the plaintiffs alleged that Harvard admissions officers consistently rated Asian American applicants, as a group, lower than others on “positive personality traits,” such as likability, courage, and kindness. The plaintiffs alleged that Asian Americans scored higher than applicants of any other racial or ethnic group on other admissions measures like test scores, grades and extracurricular activities, but the students’ personal ratings significantly hampered their admissions chances. The plaintiffs also claimed that alumni interviewers (who, unlike admissions officers within Harvard, actually met with individual applicants) gave Asian Americans personal ratings comparable to white applicants. Harvard’s admissions staff testified that they did not believe that different racial groups have better personal qualities than others, but nevertheless, Asian applicants as a racial group received consistently weaker personal scores over the period surveyed, and Harvard’s admissions office rated Asian Americans with the worst personal qualities of any racial group. African-Americans, on the other hand, consistently scored the lowest on the academic rating, but highest on the personal rating. Hence the admissions policy of “soft quota of racial balancing.”
Peter Arcidiacono, a Duke University economist testifying on behalf of the plaintiffs, concluded that Asian American applicants as a group performed stronger on measures of academic achievement (which Arcidiacono measures using applicants’ SAT and ACT scores) and extracurricular activities. Despite this, they received a statistically significant penalty relative to white applicants in the “Personal Rating” and “Overall Rating” assigned by Harvard officials. As a result, the plaintiffs allege Asian American applicants have the lowest chance of admission of all racial groups in the United States, despite scoring highest in all objective measurements. Arcidiacono testified that removing the personal score penalty of Asian applicants relative to white applicants would result in a 16% increase in the number of admitted Asian Americans. He also stated that if Harvard were to remove all other factors for admissions preference— racial preferences for under-represented minorities, penalties against Asian Americans, and legacy and athlete preferences— the number of Asian-American admits would increase by 1,241 over six years, a 50% increase.
Harvard, of course, continues to deny engaging in discrimination and said its admissions philosophy of considering race as one of many factors in its admissions policy complies with the law. The school also says that it receives more than 40,000 applications, that a large majority of applicants are academically qualified, and as a result, it must consider more than grades and test scores to determine admission for its 2,000 available slots. Harvard also claims that its personal rating “reflects a wide range of valuable information in the application, such as an applicant’s personal essays, responses to short answer questions, recommendations from teachers and guidance counselors, alumni interview reports, staff interviews, and any additional letters or information provided by the applicant.” The school also said the percentage of Asian American students admitted has grown from 17% to 21% in a decade, while Asian Americans represent around 6% of the U.S. population. Harvard further claimed that it had studied more than a dozen race-neutral admissions alternatives and allegedly found none “promote Harvard’s diversity-related educational objectives as well as Harvard’s … admissions program while also maintaining the standards of excellence that Harvard seeks in its student body.”
Various students, alumni and external groups filed amici briefs on both sides.
The case (in federal district court) was paused until the Supreme Court issued its decision in Fisher II, which it did on June 23, 2016. The case resumed, and a three-week bench trial was held in Massachusetts federal district court in Boston in October 2018. In October 2019, Judge Allison D. Burroughs ruled that Harvard College’s admissions policies do not unduly discriminate against Asian Americans. While the system is “not perfect,” Burroughs ruled, it nonetheless passes constitutional muster. In her ruling, Burroughs states that there were “no quotas” in place at Harvard, despite acknowledging that the school attempts to reach the same level of racial diversity each year and “uses the racial makeup of admitted students to help determine how many students it should admit overall.”
In February 2020, SFA filed an appeal in the United States Court of Appeals for the First Circuit. The court heard oral arguments in mid-2020 and ultimately ruled in late 2020 in favor of Harvard, concluding that Judge Burroughs had not erred in her ruling and major factual findings. The Justice Department filed friend-of-the-court briefs in both the initial hearing and the appeal, arguing that Harvard imposes “a racial penalty by systematically disfavoring Asian American applicants.”
The SFA then petitioned the Supreme Court to review both the First Circuit’s decision in the Harvard case, which focused on the impact of the admissions process on Asian Americans, and a similar decision from the Middle District of North Carolina, Students for Fair Admissions v. University of NC, et al., which focused on the impact on both Caucasian and Asian American applicants at the University of North Carolina college/university campuses and which had been decided in the school’s favor in October 2021. Both petitions sought the court to overturn Grutter v. Bollinger. In Students for Fair Admissions v. Harvard, the plaintiffs (SFA) asked if Harvard’s admission practices were in violation of Title VI of the Civil Rights Act given possible race-neutral selection processes, while in North Carolina, they asked if a university can reject a race-neutral admission process if they believe they need to protect the diversity of the student body and quality of education.
Harvard filed an opposing brief seeking to have SFA’s petition rejected by the Supreme Court. In June of 2021 the Court requested that the federal government submit a brief of its stance on the case and in December the Solicitor General of the United States under the Biden administration urged the Supreme Court to reject the appeal. However, the Supreme Court certified both petitions on January 24, 2022 and consolidated them under the case Students for Fair Admissions v. Harvard. As mentioned above, after Ketanji Brown Jackson testified during her confirmation hearing that she would recuse herself from the case because she is on the Harvard Board of Overseers, the Supreme Court separated the two cases, allowing her to participate in the UNC case. Both cases were argued on October 31, 2022.
The Court received thirty-three amicus briefs in support of SFA, and sixty in support of Harvard and UNC.
Among those in support of SFA, fourteen senators and 68 representatives, as well as 19 states, wrote that Grutter was inconsistent with the Equal Protection Clause. Others wrote that the admission policies at Harvard and the University of North Carolina were discriminatory in that any favoritism towards one race results in discrimination towards others. Other arguments in the SFA-supporting briefs, including those from Cato Institute and the Pacific Legal Foundation, considered that affirmative action policies are generally arbitrary, do not enhance diversity on campuses, and violate the allowance for federal funding under Title VI as well.
Judicial Watch and the Allied Educational Foundation (AEF), most notably, filed such briefs. Each organization argued that the Supreme Court should reject its 1978 opinion in Regents of University of California v. Bakke. Since that earlier opinion, there have been at least 26 separate opinions, each attempting to explain the constitutional rationale for allowing race-based preferences (discrimination) while clearly such preferences directly conflict with the original meaning and text of the Equal Protection Clause (of the 14th Amendment). The Judicial Watch brief highlighted how race-based discrimination, as well as the resulting quota mentality, is permeating government. They quote Vice President Kamala Harris’ attack on equality and implicit call for race-based quotes: “There’s a big difference between equity and equality. Equality suggests that ‘everyone should get the same amount.’ The problem with that is that not everyone is starting out from the same place…. Equitable treatment means we should all end up in the same place.”
Referencing VP Harris’ statement and other Biden administration actions promoting racial favoritism, the Judicial Watch brief noted: “There is, however, no constitutional guarantee that ‘we will all end up in the same place.’ The foregoing statement reveals a distorted view of the Equal Protection Clause that would guarantee racially proportionate outcomes under the name of equity, and not the equality of opportunity the Equal Protection Clause has always guaranteed. These are more than mere words or theories. Racial preferences have increasingly become incorporated in real-world, governmental decisions and policies. For example, US Department of Agriculture (USDA) officials recently sought to use race as a basis for deciding who receives governmental loan forgiveness…. In a similar vein, New York issued guidelines governing which COVID-19 patients are eligible to receive life-saving monoclonal antibodies and therapeutics which required that the patient be a person of color or Hispanic ethnicity.”
On the other hand, in support of the universities, both the Biden administration and several current and former senators wrote that historically, both the legislative and executive branches have worked to combat racial imbalances through affirmation action and are not intended to violate Title VI. Sixty-five senators and representatives stated that despite both Brown and Grutter, segregation at K–12 schools continues to worsen, and affirmative action policies are needed to fight racial imbalance. Several groups, including the American Bar Association, the American Psychological Association, and the American Civil Liberties Union, wrote to support that racial diversity is essential to college and beyond.
COURT ANALYSIS AND RULING:
Chief Justice Roberts delivered the opinion of the Court (41 pages). Justices Thomas, Gorsuch and Kavanaugh contributed ‘concurring opinion’ (58 pages, 25 pages, and 8 pages, respectively) and Justice Sotomayor (joined by Justice Kagan) and newly-appointed Justice Brown contributed ‘dissenting opinions’ (69 pages and 29 pages, respectively). Both the Harvard and North Carolina cases were decided jointly on June 29, 2023, with the Court ruling that race-based admissions adopted by both Harvard University and UNC were unconstitutional under the Equal Protection Clause of the 14th Amendment. Jackson had recused herself in Harvard, making its decision based on a 6–2 vote, while she joined the dissents in North Carolina, resulting in a 6–3 vote there. The majority opinion, written by Roberts, stated that race cannot be a conscious factor in admissions to universities, unless a particular university can demonstrate, in measurable terms, “how a particular applicant’s race has impacted his or her life and which can then contribute to the university.”
Representing the majority opinion, Justice Roberts wrote that the Equal Protection Clause of the 14th Amendment was never intended to support the judicial construct “separate but equal” is a valid interpretation of Section 1 of the Amendment (see Plessy v. Ferguson, 1896) but rather, applies “without regard to any difference of race, of color, or of nationality” and thus must apply to every person. As such, the 14th Amendment stands for the general rule: “Eliminating racial discrimination means eliminating all of it.” Furthermore, Roberts added this guideline: “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.”
Roberts wrote that the 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 end points. We have never permitted admissions programs to work in that way, and we will not do so today.” He continued: “What cannot be done directly cannot be done indirectly. The Constitution deals with substance and not shadows. The prohibition against racial discrimination is levelled at the thing (the evil practice) and not simply the name… A benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated and assessed on his or her experiences as an individual, and not on the basis of the skin color.”
He ended the opinion with these words: “Many universities have for too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but rather on the color of their skin. Our constitutional history does not tolerate that choice.”
Justices Thomas, Gorsuch, and Kavanaugh each submitted their own concurring opinions. In his concurrence, Justice Thomas laid out an originalist argument for the “colorblind constitution” and also cited statistics that indicate race-conscious admissions to universities are done at the expense of a student’s individual value. As he observed and noted: “The solution to our nation’s racial problems cannot come from policies grounded in affirmative action or some other conception of equity. Racialism simply cannot be undone by different or more racialism. Instead, the solution announced in the second founding is incorporated in our Constitution: that we are all equal and should be treated equally before the law without regard to our race. Only that promise can allow us to look past our differing skin colors and identities and see each other for what we truly are – individuals with unique thoughts, perspectives, and goals, with equal dignity and equal rights under the law.” [The term “second founding” is used by the Supreme Court and some scholars to describe the period after the Civil War when the 13th, 14th, and 15th Amendments were ratified and the Supreme Court began interpreting them. The term refers to the idea that the Reconstruction Amendments represented a second founding of the United States, a re-founding of sorts that corrected some of the flaws in the original Constitution.]
He ended his concurrence with this perhaps pessimistic message: “While I am painfully aware of the social and economic ravages which have befallen my race and all who suffer discrimination, I hold out enduring hope that this country will live up to its principles so clearly enunciated in the Declaration of Independence and the Constitution of the United States: that all men are created equal, are equal citizens, and must be treated equally before the law.”
In a dissenting opinion joined by Justice Kagan, Justice Sotomayor wrote that “Ignoring race will not equalize a society that is racially unequal. What was true in the 1860s, and again in 1954, is true today: Equality requires acknowledgment of inequality.” Sotomayor wrote that the majority opinion’s “interpretation of the 14th Amendment is 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.” (Compare this analysis to the analysis by Justice Thomas in his concurring opinion)
In a separate dissenting opinion, Justice Jackson wrote: “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…. It would be deeply unfortunate if the Equal Protection Clause actually demanded this perverse, ahistorical, and counterproductive outcome. To impose this result in that Clause’s name when it requires no such thing, and to thereby obstruct our collective progress toward the full realization of the Clause’s promise, is truly a tragedy for all of us.”
PRIOR CASES (“PRECEDENT”) RELIED ON & REFERENCED BY THE COURT:
The prior landmark cases touching on affirmative action policies in education include:
Plessy v. Ferguson (1896; “separate but equal” is permissible interpretation of the Equal Protection Clause of the 14thAmendment; the case was cited by the Supreme Court in SFA v. Harvard for its important lone dissent by Justice John Marshall Harlan who intuitively explained: “The white race deems itself to be the dominant race in this country. And so it is in prestige, in achievements, in education, in wealth and in power. … But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.”);
Brown v. Board of Education (1954; ‘separate can never be equal’ and thereby over-turning Plessy v. Ferguson in the isolated case of public education);
Regents of the University of California v. Bakke (1978; the Court upheld the use of affirmative action, allowing race to be one of several factors in college admission policy; however, the court ruled that specific racial quotas, such as the 16 out of 100 seats set aside for minority students by the University of California, Davis, School of Medicine were impermissible);
Grutter v. Bollinger (2003; the case was the first case in the new millennia that the Supreme Court hears about affirmative action in education, asking the Court whether University of Michigan Law School’s use of racial preferences in student admissions violates the Equal Protection Clause, which the Court concluded that it does not. The Court was rightfully concerned that such policies will themselves devolve into outright illegitimate stereotyping. However, the Court wisely included in its majority opinion that there should be NO educational affirmative action policies at the end of 25 years),
Fisher v. University of Texas at Austin I (2013; the Court ruled that the strictest of constitutional criteria, strict scrutiny, should be applied to determine the constitutionality of a race-sensitive admissions policy but then, using that standard, found the Univ. of Texas’ affirmative action policy is constitutional in its consideration of student acceptance), and
Fisher v. University of Texas at Austin II (2016; the Court again was asked to review the constitutionality of the affirmative action admissions policy at the Univ. of Texas at Austin); the ruling landed a devastating blow to the cause of a color-blind Constitution).
The conclusion of the Court in reviewing these cases, particularly the cases after Brown, is that judges have far too often deferred to the responses of the universities which has been “trust us.”
In this most recent case Students for Fair Admissions v. Harvard, the US Supreme Court ruled that the student plaintiffs (SFA) made the more compelling case in attacking the discriminatory admissions policies and demanding that they be struck down as unconstitutional. Indeed, it has been a long time coming for the Supreme Court to honestly interpret the Constitution and the 14th Amendment to require that our higher education system adhere to them and stop the blatant and unconstitutional race-based discrimination.
To be honest, this decision could not have come at a better time, with the liberal/progressive left pushing CRT in public elementary and high schools and embracing outright racial discrimination, racial separatism, and racial segregation under the insincere and hypocritical guise of “anti-racism.”
With this case, the demands of the Grutter v. Bollinger case (2003), which addressed the race-based admissions policy used by the University of Michigan Law School and which, in six separate occasions throughout the opinion, emphasized that within 25 years, there should be no more race-based admissions policies, were finally achieved. The Supreme Court made it clear in Students for Fair Admissions v. Harvard that such policies could no longer be justified or tolerated, or consistent with the Constitution.
References:
Students for Fair Admissions v. Harvard (full Supreme Court opinion), website for the U.S. Supreme Court – https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf
Students for Fair Admissions v. Harvard (summary), Wikipedia – https://en.wikipedia.org/wiki/Students_for_Fair_Admissions_v._Harvard
Tenth Amendment Keepers 