Supreme Court of the United States (SCOTUS): While deliberating over Students for Fair Admissions (SFFA)’s challenge over the race-based admissions programs of Harvard College and University of North Carolina (UNC) and that whether this system of admission is lawful under the Equal Protection Clause of the Four-teenth Amendment, the Court held that the race-based admission system adopted by the Universities is violative of the Equal Protection Clause. The majority further pointed out that respondent Universities have failed to operate their race-based admissions programs in a manner that is “sufficiently measurable to permit judicial review” under the rubric of strict scrutiny.
It was stated that since Harvard’s and UNC’s admissions programs lack sufficiently focused and measurable objectives warranting the use of race, and unavoidably employ race in a negative manner, involve racial stereo-typing, and lack meaningful end points; therefore, the admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. 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 applicant can contribute to the university. “Many universities have for too long wrongly concluded that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned, but the colour of their skin. This Nation’s (America) constitutional history does not tolerate that choice”.
Background: Harvard University and University of North Carolina are two of the oldest Universities in America and both the universities employ a highly selective admissions process. At Harvard each application for admission is initially screened by a “first reader,” who assigns a numerical score in each of six categories: academic, extracurricular, athletic, school support, personal, and overall. For the “overall” category, a first reader can and does consider the applicant’s race. Harvard’s admissions subcommittees then review all applications from a particular geographic area. These regional subcommittees make recommendations to the full admissions committee, and they take an applicant’s race into account. When the 40-member full admissions committee begins its deliberations, it discusses the relative breakdown of applicants by race. The goal of the process, according to Harvard’s director of admissions, is ensuring there is no “dramatic drop-off” in minority admissions from the prior class.
An applicant receiving a majority of the full committee’s votes is tentatively accepted for admission. The last stage of Harvard’s admissions process, called the “lop,” sorts the list of tentatively admitted students to arrive at the final class. Applicants that Harvard considers cutting at this stage are placed on the “lop list,” which contains only four pieces of information: legacy status, recruited athlete status, financial aid eligibility, and race.
In Harvard admissions process, race is a determinative tip for a significant percentage of all admitted African American and Hispanic applicants. University of North Carolina has similar admissions process.
The afore-stated admissions process was challenged by the SFFA, a nonprofit organization. They filed separate lawsuits against Harvard and UNC, arguing that their race-based admission programs violate, Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment.
Court’s Assessment: The majority decision of the Court was delivered by John Roberts, CJ*., in which Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, JJ., joined. Clarence Thomas, Neil Gorsuch and Brett Kavanaugh, JJ., also filed concurring opinions.
The majority clarified that since SFAA complies with the standing requirements for organizational plaintiffs, therefore SCOTUS has jurisdiction to consider the merits of SFFA’s claims.
Stating that eliminating racial discrimination means eliminating all of it, the majority pointed out that any exceptions to the Equal Protection Clause’s guarantee must survive a daunting two-step examination known as “strict scrutiny”. Referring to the SCOTUS precedents, especially Grutter v. Bollinger1, which has analysed as to how universities may consider race in their admissions programs like- risk that the use of race will devolve into illegitimate stereo-typing i.e. “belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue; risk that race would be used not as a plus, but as a negative’—to discriminate against those racial groups that were not the beneficiaries of the race-based preference. To manage these concerns, Grutter imposed one final limit on race-based admissions programs: Recognizing that “enshrining a permanent justification for racial preferences would offend” the Constitution’s unambiguous guarantee of equal protection, the Court expressed its expectation that, in 25 years, “the use of racial preferences will no longer be necessary to further the interest approved today.”
The majority pointed out that admission programs of Universities of Harvard and North Carolina fail on the criteria that admissions programs must comply with strict scrutiny; may never use race as a stereo-type or negative and must at some point end. The majority pointed out that the interests that respondent universities view as “compelling” such as training future leaders, acquiring new knowledge based on diverse outlooks, promoting a robust marketplace of ideas, and preparing engaged and productive citizens; cannot be subjected to meaningful judicial review. While these are commendable goals, they are not sufficiently coherent for purposes of strict scrutiny. “It is unclear how courts are supposed to measure any of these goals, or if they could, to know when they have been reached so that racial preferences can end. The elusiveness of respondents’ asserted goals is further illustrated by comparing them to recognized compelling interests”.
The majority pointed out that respondent universities’ admissions programs fail to articulate a meaningful connection between the means they employ and the goals they pursue. To achieve the educational benefits of diversity, respondents measure the racial composition of their classes using racial categories that are plainly overbroad; arbitrary or undefined. The unclear connection between the goals that respondents seek and the means they employ preclude courts from meaningfully scrutinizing respondents’ admissions programs. “The universities’ main response to these criticisms is ‘trust us’ (…) While this Court has recognized a tradition of giving a degree of deference to a university’s academic decisions,” it has made clear that deference must exist “within constitutionally prescribed limits. Respondents have failed to present an exceedingly persuasive justification for separating students on the basis of race that is measurable and concrete enough to permit judicial review, as the Equal Protection Clause requires”.
As per the majority, the race-based admissions system also fails to comply with the Equal Protection Clause’s twin commands that race may never be used as a “negative” and that it may not operate as a stereo-type. Majority opined that college admissions are zero-sum, and a benefit provided to some applicants but not to others, necessarily advantages the former at the expense of the latter. Vis-à-vis stereo-typing, the majority pointed out that, “When a university admits students on the basis of race”, it engages in the offensive and demeaning assumption that students of a particular race, because of their race, think alike.”
The majority further pointed out that the respondent universities’ admission program lacks a logical end point as required under Grutter (supra). Majority noted respondents’ contention that frequent reviews they conduct determine whether racial preferences are still necessary, which obviates the need for an end point. However, the majority pointed out that Grutter (supra) never suggested that periodic review can make unconstitutional conduct constitutional.
Based on the afore-stated rationale, the majority held that Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereo-typing, and lack meaningful endpoints.
Concurring opinion by Justice Clarence Thomas
“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”.
Thomas, J., joined the majority opinion in full, however, he chose to write separately to “offer an originalist defence of the colour-blind Constitution”.
Delving into the history, evolution and expansion of the 14th Amendment, history of racial segregation, Thomas, J., observed that earliest Supreme Court opinions to interpret the 14th Amendment in colour-blind terms. Their statements characterizing the Amendment evidence its commitment to equal rights for all citizens, regardless of the colour of their skin. The Court made it clear that 14th Amendment’s equality guarantee applied to members of all races, ensuring all citizens equal treatment under law. “Properly understood, our precedents have largely adhered to the Fourteenth Amendment’s demand for colour-blind laws. That is why, for example, courts “must subject all racial classifications to the strictest of scrutiny””.
Thomas, J., further stated that, “Harvard and UNC have offered a grab bag of interests to justify their programs, spanning from training future leaders in the public and private sectors to enhancing appreciation, respect, and empathy, with references to better educating their students through diversity in between. The Court today finds that each of these interests are too vague and immeasurable to suffice and I agree”.
Thomas, J., also pointed out that even if the respondent universities had shown that racial diversity yielded any concrete or measurable benefits, they would still face a very high bar to show that their interest is compelling. “To survive strict scrutiny, any such benefits would have to outweigh the tremendous harm inflicted by sorting individuals on the basis of race (…) Universities’ self-proclaimed righteousness does not afford them license to discriminate on the basis of race”.
He further pointed out that in an effort to salvage their patently unconstitutional programs, the universities argue that the Fourteenth Amendment permits the use of race to benefit only certain racial groups. Yet, this is just the latest disguise for discrimination. Thomas, J., said that SCOTUS precedents explicitly require that any attempt to compensate victims of past governmental discrimination must be concrete and traceable to the de jure segregated system, which must have some discrete and continuing discriminatory effect that warrants a present remedy. “Today’s opinion for the Court reaffirms the need for such a close remedial fit, hewing to the same line we have consistently drawn”.
Thomas, J., pointed out that both Harvard and UNC have a history of racial discrimination. However, neither have even attempted to explain how their current racially discriminatory programs are even remotely traceable to their past discriminatory conduct. “Both experience and logic have vindicated the Constitution’s colour-blind rule and confirmed that the universities’ new narrative cannot stand”.
“Our Nation (America) did not initially live up to the equality principle. The institution of slavery persisted for nearly a century. (…) The period leading up to our second founding brought these flaws into bold relief and encouraged the Nation to finally make good on the equality promise. As Lincoln recognized, the promise of equality extended to all people’—including immigrants and blacks whose ancestors had taken no part in the original founding”.
Thomas, J., noted that “Affirmative Action” policies do nothing to increase the overall number of blacks and Hispanics able to access a college education. Rather, those racial policies simply redistribute individuals among institutions of higher learning, placing some into more competitive institutions than they otherwise would have attended. Citing in own opinions in several precedents, the Judge stated that, “I have long believed that large racial preferences in college admissions stamp blacks and Hispanics with a badge of inferiority.”
Thomas, J., pondered that what would be the endpoint of these affirmative action policies? He stated that, “these policies appear to be leading to a world in which everyone is defined by their skin colour, demanding ever-increasing entitlements and preferences on that basis”. He further opined that solution to America’s racial problems thus cannot come from policies grounded in affirmative action or some other conception of equity. Racialism simply cannot be un-done 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 colours”.
Thomas, J., also stated that majority’s opinion makes it clear that Grutter is, for all intents and purposes, overruled. Furthermore, the majority sees the universities’ admissions policies for what they are: rudderless, race-based preferences designed to ensure a particular racial mix in their entering classes.
[Students for Fair Admissions v. President and Fellows of Harvard College, 2023 SCC OnLine US SC 33, decided on 29-06-2023]
*Majority opinion written and delivered by Chief Justice, John Roberts