The Supreme Court Overturns Fifty Years of Precedent on Affirmative Action

Race-conscious affirmative action, in which schools consider applicants’ race as a factor in admissions, has traditionally been treated as a form of “racial classification.” The first time that the Supreme Court pronounced that the use of racial classifications must be subjected to “the most rigid scrutiny” was in 1944, in Korematsu v. United States, when the Court found that the internment of Japanese Americans during the Second World War to serve national security passed that test and was, therefore, lawful. On Thursday, the Court used the same test, referred to today as “strict scrutiny,” to declare that affirmative action is impermissible.

In two cases, Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina, Chief Justice John Roberts, joined by all five conservative Justices, held that race-based affirmative action violates the equal-protection clause of the Fourteenth Amendment and Title VI of the Civil Rights Act. According to the majority opinion, the use of affirmative action by colleges and universities to admit a diverse student body violates the guarantee of equal protection of the laws and the prohibition on discrimination based on race.

As the standard that the Court uses to determine whether the government’s use of racial classification is permissible, strict scrutiny involves asking whether the practice furthers a “compelling interest” and is “narrowly tailored” to achieve that interest. In the S.F.F.A. cases, Roberts said that affirmative action fails both parts of the test.

For around fifty years, the Court has understood a university’s pursuit of the educational benefits of a racially diverse student body as a compelling interest, but Roberts made clear, writing for the 6–3 majority on Thursday, that from now on it will not be treated that way. Although he acknowledged that schools’ interests in diversity are “commendable,” he said that “they are not sufficiently coherent,” arguing that it was unclear how to measure when the goals have been reached and how to know when the use of race should end. He called schools’ diversity interests “inescapably imponderable.”

On the narrow-tailoring test, Roberts wrote that affirmative action fails because of what he asserted to be a lack of “a meaningful connection” between the use of applicants’ race and the interest in diversity. Here, he focussed on the fact that Black, Hispanic, and Asian American people are internally diverse. Roberts argued that “the use of these opaque racial categories undermines” the goal of diversity. He illustrated the point by suggesting that Harvard and U.N.C. would apparently prefer “a class with 15% of students from Mexico over a class with 10% of students from several Latin American countries, simply because the former contains more Hispanic students.” Roberts’s conclusion was that affirmative-action programs were unfocussed and “unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.”

Roberts called out Harvard, in particular, on a number of issues. He pointed out that, while Harvard claimed that the use of race as a “plus” in admissions is never a “negative factor” for any applicant, its consideration of race led to a substantial decrease in the admission of Asian Americans. Harvard’s lawyers had compared its use of race as a factor in admissions to a preference given “to applicants likely to excel in the Harvard-Radcliffe Orchestra,” but Roberts found this argument “hard to take seriously.” Because “college admissions are zero-sum,” he reasoned, “a benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.” And the point of the equal-protection clause, he wrote, “is that treating someone differently because of their skin color is not like treating them differently because they are from a city or from a suburb, or because they play the violin poorly or well.”

Since universities can no longer consider applicants’ race in deciding whether to offer them admission, the immediate practical question is what information they can consider about applicants. In a key sentence, toward the end of his ruling, Roberts said, “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.” (Harvard cited the sentence in a message to its community after the Court’s decision.) Roberts’s point was that “the student must be treated based on his or her experiences as an individual—not on the basis of race.”

It is not surprising that mandating that admissions processes become race-neutral does not require making them race-blind. But it may be tricky to sort out how to include in admissions decisions a consideration of an applicant’s story of overcoming racial discrimination or of being motivated by one’s heritage or culture, while taking care not to run afoul of the Court’s warning that “universities may not simply establish through application essays or other means the regime we hold unlawful today.” While some may perceive schools’ continuing ability to consider applicants’ accounts of their experiences with race to be a loophole that effectively maintains race-conscious admissions, only time will tell whether schools can make this nuanced shift—from a person’s race to a person’s story about their race—in evaluating applicants in ways that courts can live with.

Another crucial question is whether schools may continue to pursue their interest in racial diversity through means other than affirmative action––that is, through race-neutral methods. The Court leaves that discussion for another day, which may arrive quite soon, since there are many possible ways in which schools might still seek to affect the racial composition of a class, such as by eliminating the consideration of standardized-test scores, or by undertaking targeted recruiting efforts prior to admissions. For now, student-body diversity is no longer a compelling interest, but it has also not been declared an illegitimate one for schools to seek out.

The S.F.F.A. cases were brought on behalf of Asian Americans claiming racial discrimination, yet Roberts’s opinion said very little about Asian Americans. As if playing parts of a well-orchestrated score, other Justices in the majority picked up on what Roberts left unsaid. In his concurrence, Justice Clarence Thomas raised the history of discrimination against Asian Americans and the fact that students of Asian descent were once excluded from “white” schools because of their race; in light of this, he said, it was “incongruous” to try to remedy historical wrongs against Black Americans at “the expense of Asian American college applicants.”

Justice Neil Gorsuch criticized Harvard for its lack of socioeconomic diversity and its preferences for legacies, athletes, children of donors, and children of faculty, who end up as roughly a third of the undergraduate class—practices that “undoubtedly benefit white and wealthy applicants.” And Justice Brett Kavanaugh zeroed in on the idea that affirmative action was always seen as temporary, listing all the times that Justices have said so, including in Justice Sandra Day O’Connor’s famous line, in the landmark affirmative-action case, Grutter v. Bollinger (2003): “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

Did the Court actually overrule Grutter? It did not say so explicitly. Roberts’s explanations, in fact, seemed to make the case that Harvard and U.N.C. had violated limits on racial classification set forth in Grutter. But Thomas’s concurrence correctly states “that Grutter is, for all intents and purposes, overruled.” The interest that Grutter approved—the interest in pursuing the benefits of diversity—is no longer to be treated by courts as compelling. But even the liberal dissenters, in their strong defense of the need for race-conscious affirmative action, seemed not quite willing to tether their support of the policy to the goal of student-body diversity. That is because the dissenters, in two opinions, penned by Justice Sonia Sotomayor and by Justice Ketanji Brown Jackson, were focussed on the continuing need to remedy the devastating, ongoing effects of the historical subjugation of Black Americans.

Perhaps the most unfortunate aspect of the affirmative-action precedents is that since 1978, in Regents of the University of California v. Bakke, the Court has said that the goal of remedying past societal discrimination and injustice is not a compelling interest for schools to pursue in admissions. The dissents in the S.F.F.A. cases underscored not only that the sins that the United States has visited on Black people did not end after slavery and Jim Crow but also that the original justification for affirmative action which the Court approved five decades ago—diversity—was entirely incommensurate to the profound problem to be addressed and was doomed to fail. ♦

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