Discover more from The Bulwark
Affirmative Action Ruling: SCOTUS Decision Is Bad News for Equal Opportunity
The Court’s decision to make “race irrelevant in law” is premature and disregards the country’s present reality.
IN A 6-3 RULING AUTHORED BY CHIEF JUSTICE John Roberts, the Supreme Court on Thursday made it illegal and unconstitutional for schools to consider race in their admissions decisions. The ruling specifically addressed the admissions criteria of both a private institution (Harvard University) and a public institution (the University of North Carolina at Chapel Hill). Neither school’s policy treats race as a golden ticket to the front of the line for people of color—although many people might incorrectly understand the term “affirmative action” to mean that. In fact, racial quotas in admissions have been constitutionally forbidden since 1978. The implications of Students for Fair Admissions, Inc. v. President and Fellows of Harvard College are instead far broader with respect to the law’s ability to remedy structural inferiorities stemming from centuries of slavery.
To understand the implications of the decision, it’s important first to understand a bit about the legal and practical history of the meaning of affirmative action.
As Justice Sonya Sotomayor explained in her dissenting opinion, which was joined by Justices Elena Kagan and Ketanji Brown Jackson (who also wrote her own dissent), the original Constitution as ratified in 1788 protected “the profitable institution that was slavery,” around which “American society was structured.” Article I, Section 9 constrained Congress’s ability to restrict the slave trade; Article I, Section 2 established how enslaved people would be counted (“three fifths of all other Persons”) in apportioning seats in Congress; Article IV, Section 2 empowered slaveholders to retrieve slaves if they escaped to free states. Meanwhile, many Southern states banned education for black people, both enslaved and free.
After the South lost the Civil War, the Constitution was amended to address the impact of centuries of enslaving black Americans. The Thirteenth Amendment abolished “slavery” and “involuntary servitude, except as a punishment for crime.” When Southern states subsequently expanded their criminal laws to outmaneuver the Thirteenth Amendment by requiring black people to sign forced labor contracts in order to work for a white employer, the Fourteenth Amendment followed. It commands that “no State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”
Affirmative action stems from this “equal protection” guarantee. As Sotomayor noted, quoting University of Texas Law School lecturer Andrew Kull, “Congress chose its words carefully, opting for expansive language that focused on equal protection and rejecting ‘proposals that would have made the Constitution explicitly color-blind.’” The term “affirmative action” was coined in the 1960s to describe a variety of policies put in place to prevent discrimination—originally in hiring people for government contracts, and soon, by extension, in accepting students applying to college.
Fast-forward to 1978. Allan Bakke, a white man who twice failed to get into the medical school of the University of California, Davis, sued to challenge the school’s affirmative action program, which set aside 16 seats out of every 100 for minority applicants. The Supreme Court in Regents of the University of California v. Bakke held that the set-aside policy was unconstitutional, but made clear that race could be considered as one of the school’s many criteria for admissions, on the rationale that obtaining a diverse student body was a legitimate goal in education.
The next important ruling came in 2003, when in Grutter v. Bollinger, the Court upheld the admissions policy of the University of Michigan Law School (my alma mater) over a claim by a rejected applicant that the law school’s consideration of race amounted to an illegal quota system under Bakke. The Court reiterated that race could be used as one of many criteria for admissions, and that obtaining a diverse student body was a valid objective that justified its use. In her majority opinion, however, Justice Sandra Day O’Connor wrote that “race-conscious admissions policies must be limited in time,” with the ultimate goal of colorblind admissions: “The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
Those two concepts—drawing a “logical end point” to affirmative action and implementing constitutional “colorblindness,” a hotly contested concept—both made their way into the majority opinion this week. “Twenty years have passed since Grutter,” Roberts wrote, “with no end to race-based college admissions in sight.” Echoing a line he wrote in a 2007 opinion (“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race”), Roberts made this landmark pronouncement: “Eliminating racial discrimination means eliminating all of it.” The “outright racial balancing” against other admissions criteria that colleges and universities have been doing, the majority concluded, is “patently unconstitutional.”
Thus, it is now illegal to specifically consider race in admissions, unless it’s needed (a) to remedy past discrimination by the institution, which is virtually impossible to show; (b) to avoid race riots in prisons (I am not making that part up); or (c) for the military, which Roberts specifically left on the table in a footnote because of “the potentially distinct interests that military academies may present.”
By the same token, the majority effectively ruled that obtaining a racially diverse student body is no longer a legally legitimate goal for educational institutions under the Fourteenth Amendment (which applies to public ones) or Title VI of the Civil Rights Act (which applies to certain private ones, like Harvard). If they want to achieve diversity, they must do it through a non-racial back door.
COMMENTATORS—ALONG WITH COLLEGES, universities, schools and, in all likelihood, other governmental bodies and private entities that take race into account in hiring—are left to muddle over the open-ended finale of Roberts’s ruling, which reads in part like this:
At the same time, nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university. [Emphasis added.]
Elsewhere, Roberts elaborated that “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” Within hours of the ruling being handed down on Thursday, Harvard announced its intention to make use of that loophole.
To understand the Court’s new “quality of character or unique ability” test for college admissions, consider what Harvard and UNC were doing, which is now illegal. Harvard’s last-stage admissions process involved a so-called “lop” test. Tie-breaking decisions were made based on four criteria: legacy status (that is, whether a candidate’s relatives attended the school and, presumably, donated loads of money), athletic prowess, financial aid eligibility, and race. Moving forward, the lop test has been lopped down to just the first three of those criteria.
As for UNC, race was one of forty factors that admission officers considered holistically. The first readers of applications formulated non-binding recommendations based on those criteria and wrote up justifications for their recommendations. In those writeups, Roberts wrote, readers were allowed to “offer students a ‘plus’ based on their race, which ‘may be significant in an individual case.’” Moving forward, any of the other 39 criteria can still be a “plus”—just not race.
In applying to colleges, students can still talk about their race if they believe it’s part of their character or unique abilities that otherwise make them good candidates for admission. Speaking about the ruling on Thursday, President Joe Biden offered a workaround: identifying “the adversity a student has overcome,” including “a student’s lack of financial means.”
Critically, however, Roberts added a caveat to his “quality of character or unique ability” test: “universities may not simply establish through application essays or other means the regime we hold unlawful today.” The new battleground will accordingly be fought over the specific text of the essays included in individual applications. Practically speaking, the Court left it up to individual application readers—not lawyers or judges—to make the initial call as to what essays are or are not legal. Students who are denied admission based on the mistaken belief that their essays contain information that the school cannot legally consider will inevitably be left in the lurch. Litigation will surely follow.
For now, notwithstanding the promise of the Fourteenth Amendment, the new law of the land is that consideration of race in school admissions is illegal. Wrote Justice Brown Jackson in a fiery dissent: “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.”
Support our in-depth Supreme Court coverage by getting a free or paid subscription.