Supreme Court of the United States (SCOTUS): In a significant decision rendered on 29-06-2023, six Judges of the 9-Bench SCOTUS held that race-based admission system adopted by the Universities of Harvard and North Carolina is violative of the Equal Protection Clause of the 14th Amendment of the American Constitution. The majority comprising of John Roberts, CJ*., Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, JJ., further held that the impugned admission 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 endpoints. However, Sonia Sotomayor*, Elena Kagan and Ketanji Brown Jackson*1, JJ., dissented.
Dissenting Opinion by Justice Sonia Sotomayor
“At bottom, the six unelected members of today’s majority upend the status quo based on their policy preferences about what race in America should be like, but is not, and their preferences for a veneer of colour-blindness in a society where race has always mattered and continues to matter in fact and in law”.
While considering Students for Fair Admissions Challenge to Harvard University’s race- based admissions program, Sonia Sotomayor, J., stated that The Equal Protection Clause of the Fourteenth Amendment enshrines a guarantee of racial equality, which the SCOTUS long ago concluded that this guarantee can be enforced through race-conscious means in a society that is not, and has never been, colour-blind. Invoking relevant precedents, Sotomayor, J., stated that allowing colleges and universities to consider race in a limited way and for the limited purpose of promoting the important benefits of racial diversity, has helped equalize educational opportunities for all students of every race and background and has improved racial diversity on college campuses.
She stated that the majority’s decision that race can no longer be used in a limited way, in college admissions to achieve higher education benefits, the Court has cemented a superficial rule of colour-blindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.
“Equal educational opportunity is a prerequisite to achieving racial equality in our Nation.”
Delving into the history of US and its dark past of racial discrimination and slavery, and history of the Constitution, Sotomayor, J., stated that the reason for the inception of 14th was to “secure to a race recently emancipated, a race that through many generations was held in slavery, all the civil rights that the superior race enjoy.” To promote this goal, Congress enshrined a broad guarantee of equality in the Equal Protection Clause. Simultaneously, the Congress enacted a number of race-conscious laws to fulfil the Amendment’s promise of equality, leaving no doubt that the Equal Protection Clause permits consideration of race to achieve its goal.
Sotomayor, J., also discussed the background of the statement “US Constitution is colour-blind”, wherein she highlighted that how in Plessy v. Ferguson2, while considering a Louisiana law which authorized segregation in railway carriages, Justice Harlan in his powerful dissent, expressed that there is “no superior, dominant, ruling class of citizens in the eyes of the law” and in that context, Justice Harlan thus announced his view that “Our constitution is colour-blind”. Furthermore, the SCOTUS in Brown v. Board of Education3, ordered segregated schools to transition to a racially integrated system of public education. Sotomayor, J., remarked that Justice Harlan’s dissent has been distorted by the majority.
She also highlighted post Brown (supra) decisions which had upheld the constitutionality of limited race-conscious college admissions. “Bakke4, Grutter5, and Fisher6 are an extension of Brown’s legacy. Those decisions recognize that ‘experience lends support to the view that the contribution of diversity is substantial’”. Sotomayor, J., pointed out that racially integrated schools improve cross-racial understanding, “break down racial stereotypes,” and ensure that students obtain “the skills needed in today’s increasingly global marketplace (…) through exposure to widely diverse people, cultures, ideas, and viewpoints.” Sotomayor, J., remarked that compelling interest in student body diversity is grounded not only in the Court’s equal protection jurisprudence but also in principles of “academic freedom,” which ‘long have been viewed as a special concern of the First Amendment’.
Sotomayor, J., noted that majority’s interpretation of the 14th Amendment is not only contrary to precedent and the entire teachings of American history, but is also grounded in the illusion that racial inequality was a problem of a different generation. “Entrenched racial inequality remains a reality today. That is true for society writ large and, more specifically, for Harvard and the University of North Carolina (UNC), two institutions with a long history of racial exclusion. 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”. Pointing out the deeply entrenched racial inequality, Sotomayor, J., stated that opportunity gaps result in fewer students from underrepresented backgrounds even applying to college, particularly elite universities. “Given the central role that education plays in breaking the cycle of racial inequality, these structural barriers reinforce other forms of inequality in communities of colour”.
Taking note of Harvard and UNC’s dark dalliance with racism and segregation in the past, Sotomayor, J., noted that inequalities in these institutions still exists for students of colour. However, she also pointed out that Harvard and UNC have acknowledged their past and its lingering effects. “Acknowledging the reality that race has always mattered and continues to matter, these universities have established institutional goals of diversity and inclusion, consistent with equal protection principles and this Court’s settled law. Their policies use race in a limited way with the goal of recruiting, admitting, and enrolling underrepresented racial minorities to pursue the well-documented benefits of racial integration in education”.However, majority’s verdict stands in the way of these universities’ commendable undertaking and entrenches racial inequality in higher education. “The majority opinion does so by turning a blind eye to these truths and overruling decades of precedent”.
Sotomayor, J., noted that the question whether Harvard’s and UNC’s policies survive strict scrutiny under settled law is straight-forward, both because of the procedural posture of these cases and because of the narrow scope of the issues presented by SFFA. She pointed out that the use of race is narrowly tailored unless “workable” and “available” race-neutral approaches exist, i.e., race-neutral alternatives promote the institution’s diversity goals and do so at ‘tolerable administrative expense’.
Sotomayor, J., stated that limited use of race in college admissions is consistent with the 14th Amendment and SCOTUS’s broader equal protection jurisprudence. However, “In sharp contrast with today’s decision, the Court has allowed the use of race when that use burdens minority populations”. She also cautioned that the result of majority decision is that a person’s skin colour may play a role in assessing individualized suspicion, but it cannot play a role in assessing that person’s individualized contributions to a diverse learning environment. “Today, the Court replaces this settled framework with a set of novel restraints that create troubling equal protection problems and share one common purpose: to make it impossible to use race in a holistic way in college admissions, where it is much needed”.
Sotomayor, J., remarked that majority’s true objection appears to be that a limited use of race in college admissions does, in fact, achieve what it is designed to achieve: It helps equalize opportunity and advances respondents’ objectives by increasing the number of underrepresented racial minorities on college campuses, particularly Black and Latino students. “This is unacceptable, the Court says, because racial groups that are not underrepresented “would be admitted in greater numbers” without these policies”. By singling out race, the Court imposes a special burden on racial minorities for whom race is a crucial component of their identity.
Sotomayor, J., noted that there is no question that minority students will bear the burden of this decision. She also noted that, the majority suggests that “nothing” in today’s opinion prohibits universities from considering a student’s essay that explains “how race affected that student’s life.” “This supposed recognition that universities can, in some situations, consider race in application essays is nothing but an attempt to put lipstick on a pig”.
Sotomayor, J., further stated that it is not a stereotype to acknowledge the basic truth that young people’s experiences are shaded by a societal structure where race matters. “Acknowledging that there is something special about a student of colour who graduates valedictorian from a predominantly white school is not a stereotype. Nor is it a stereotype to acknowledge that race imposes certain burdens on students of colour that it does not impose on white students”.
Commenting on the majority’s view that respondent universities’ admission program is unworkable because they rely racial categories that are “imprecise,” “opaque,” and “arbitrary, Sotomayor, J., remarked that the racial categories that the majority finds troubling, resemble those used across the Federal Government for data collection, compliance reporting, and program administration purposes, including, for example, by the U. S. Census Bureau.
Vis-à-vis “25- year duration for affirmative action programs” as stated in Grutter (supra), Sotomayor, J., pointed out that this new durational requirement is also not grounded in law, facts, or common sense. “True, Grutter referred to “25 years,” but that arbitrary number simply reflected the time that had elapsed since the Court “first approved the use of race” in college admissions in Bakke”.
Concluding her opinion, Sotomayor, J., stated that although the majority has stripped out almost all uses of race in college admissions, universities can and should continue to use all available tools to meet society’s needs for diversity in education. “Despite the Court’s unjustified exercise of power, the opinion today will serve only to highlight the Court’s own impotence in the face of an America whose cries for equality resound”.
Dissenting Opinion by Justice Ketanji Brown Jackson7
“History speaks. In some form, it can be heard forever. The race-based gaps that first developed centuries ago are echoes from the past that still exist today. By all accounts, they are still stark”.
Delivering her dissenting opinion in SFAA’s challenge to University of North Carolina’s admission process, Jackson, J., wrote a separate opinion to expound upon the universal benefits of considering race in higher education.
Taking notes of SFAA’s argument that use of race in admission process, is unfair, Jackson, J., pointed out that SFAA’s contention “blinks both history and reality in ways too numerous to count. But the response is simple: Our country has never been colour-blind”.
Delving into the history of America when slavery was rife and race-based discrimination rampant, Jackson, J., highlighted the ways black people had been discriminated, lengthy struggle to seek their rights. She pointed out that how government policy choices in the past had ensured that black people were locked out of opportunities, based on their colour and race. “Given our history, the origin of persistent race-linked gaps should be no mystery”.
Jackson, J., stated that demanding colleges to ignore race and thus disregard the fact that racial disparities may have mattered for where some applicants find themselves today, is not only an affront to the dignity of those students for whom race matters, it also condemns society to never escape the past that explains how and why race matters to the very concept of who “merits” admission.
Analysing the UNC admission process, Jackson, J., noted that every student who chooses to disclose his or her race is eligible for such a race-linked plus, just as any student who chooses to disclose his or her unusual interests can be credited for what those interests might add to UNC. “Race is considered alongside any other factor that sheds light on what attributes applicants will bring to the campus and whether they are likely to excel once there”.
Jackson, J., remarked that the majority seems to think that race blindness solves the problem of race-based disadvantage. “But the irony is that requiring colleges to ignore the initial race-linked opportunity gap between applicants will inevitably widen that gap, not narrow it. It will delay the day that every American has an equal opportunity to thrive, regardless of race”.
Jackson, J., also pointed out that beyond campus, the diversity that UNC pursues for the betterment of its students and society. It saves lives. For marginalized communities in North Carolina, it is critically important that UNC and other are institutions produce highly educated professionals of colour.
She also pointed out that ensuring a diverse student body in higher education helps everyone, not just those who due to their race, have directly inherited distinct disadvantages with respect to their health, wealth, and wellbeing.
“With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces “colour-blindness for all” by legal fiat. But deeming race irrelevant in law does not make it so in life. And having so detached itself from this country’s actual past and present experiences, the Court has now been lured into interfering with the crucial work that UNC and other institutions of higher learning are doing to solve America’s real-world problems”.
Terming the majority’s decision as “tragedy for us all”, Jackson J. remarked that UNC has built an admission review process that more accurately assesses merit than most of the admissions programs that have existed since America’s founding. Moreover, in so doing, universities like UNC create pathways to upward mobility for long excluded and historically disempowered racial groups. “The Court has come to rest on the bottom-line conclusion that racial diversity in higher education is only worth potentially preserving insofar as it might be needed to prepare Black Americans and other underrepresented minorities for success in the bunker, not the boardroom”.
[Students for Fair Admissions v. President and Fellows of Harvard College, 2023 SCC OnLine US SC 33, decided on 29-06-2023]
1. JUSTICE JACKSON did not participate in the consideration or decision of the case in No. 20-1199 (SFAA v. Harvard) and joined this opinion only as it applies to the case in No. 21-707 (SFAA v. University of North Carolina).
7. Justice Jackson delivered her dissent in respect to the case in No. 21-707 (SFAA v. UNC)
