ON THURSDAY, THE U.S. SUPREME COURT issued its opinion in two cases, Students for Fair Admissions, Inc. v. University of North Carolina (from the Federal District Court for the Middle District of N.C.), and Students for Fair Admissions Inc. v. President & Fellows of Harvard College (from the Court of Appeals for the First Circuit), holding, in both cases, that the admissions departments at both schools violate the Equal Protection Clause of the 14th Amendment because of its affirmative action programs. A link to the U.N.C. decision is here and writ of cert here; Harvard, here and here. The cases were consolidated for judicial economy but argued separately. Justice Jackson participated only in the UNC case due to a conflict from having been on Harvard’s board of overseers.
By a vote of 6-3, the Court found the Equal Protection Clause was violated in these schools’ use of affirmative action programs in their admissions decisions that denied highly qualified Asian students while accepting lesser qualified black or other minority students.
Writing for the majority, Chief Justice John Roberts effectively, but not explicitly overruled a 2003 decision in Grutter v. Bollinger (read here), clarifying that admissions departments can consider race only as to permit an applicant to explain how race may have affected their character in a fashion that would have a concrete effect on the school, but “a student “must be treated based on his or her experiences as an individual — not on the basis of race.” Roberts notably emphasized the important fact that admissions are zero-sum propositions, and affirmative action could use race in a “negative” manner. “[D]oing away with all governmentally imposed discrimination based on race,” he wrote, reflects the Clause’s “core purpose.” Grutter had held race could be considered “as one factor among many, in an effort to assemble a student body that is diverse in ways broader than race.”
Justice Clarence Thomas wrote a concurrence, emphasizing that the 14th Amendment imposes “a blanket ban on race-conscious policies.” He added that by placing less qualified students in more competitive programs, it can have an undesired effect of making those students less likely to succeed. And finally, he observed that they may be harmed by the stigma that they obtained their degree because of race rather than merit, something he said he experienced in his memoir. Justice Brett Kavanaugh also wrote a concurrence where he stressed the role of federal and state civil rights laws going forward.
Justice Sonia Sotomayor dissented, joined by Justices Elena Kagan and Ketanji Brown Jackson. Sotomayor, a graduate of Princeton and Yale Law School, had once described herself as “the perfect affirmative action baby.”
Immediately after the decision was announced, so-called progressives were fit to be tied. Race-baiting is, for many of them, their stock and trade. A state of perpetual victimhood is good for business for some, too. (Try being a straight, white male in 2023 and you’ll see why there is, at this late date, sympathy fatigue.
In fact, today’s decision is hardly radical. Roberts expressly stated race could be considered on a case-by-case basis (as when an applicant discussed ‘how race affected his or her life, be it through discrimination, inspiration, or otherwise’.” , and in any event, there will surely be covert preferences by some admissions departments because they are governed by a hierarchy which likely reached its levels through affirmative action themselves.
Furthermore, the colleges and universities will be watched closely and their admission decisions scrutinized to ensure there is no bias against minority students. If there is, or perceived to be discrimination, bet your life it will be litigated (and judged under the rather un-elucidating standard enunciated on Thursday. There were nearly 100 amici filing briefs in these cases.
Indeed, is is quite possible, especially in our ‘woke’ world, that, in an ongoing effort to outdo one another, the opposite will happen. The schools will be wanting to signal their virtue to be ‘celebrated’ for their commitment to ‘diversity, equity, and inclusion.’ (See, e.g., here.) In fact, schools now offer degrees in the soft pseudo-science of socialist-inspired DEI, where students applying will surely be able to thrust race into the forefront of their applications under Roberts’ latest edict.
Of note, the decisions only apply to higher level educational institutions, not to workplaces. Nor does the decision affect service academies such as West Point or the U.S. Naval Academy.
sua sponte 