“You can please some of the people all of the time, you can please all of the people some of the time, but you can’t please all of the people all of the time”.” — John Lydgate, 14th century poet priest
Lydgate’s famous quotation characterizes most U.S. Supreme Court decisions, but none more so than its recent decision ruling that affirmative action on the basis of race in higher education admissions violated the Equal Protection Clause of the Fourteenth Amendment.
The Court’s decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, consolidated with the Students for Fair Admissions, Inc. v. University of North Carolina (UNC), also reinforced the typical 6-3 conservative/liberal split among the Justices.
Chief Justice Roberts authored the majority opinion, joined by Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. Justice Thomas filed a lengthy concurrence. Gorsuch also filed a concurrence, joined by Thomas. Kavanaugh filed another concurrence. Justice Sotomayor filed a dissenting opinion, joined by Justice Kagan. Justice Jackson took no part in the discussion of the case because of her previous association on an advisory board for Harvard. However, she filed her dissent with reference to the part of the majority decision referring to UNC.
Both Harvard and UNC Chapel Hill receive tens of thousands of applications for admission each year, but each accepts only a relatively small percentage of freshmen each year, Harvard only 0.32% and UNC approximately 9.7%, the percentages using the data provided in the majority opinion. Both institutions have a multi-step review process to select students for admission.
At Harvard, an application for admission is first screened and numerically scored in six different categories: academic, extracurricular, athletic, school support, personal, and “overall,” which is the category where race can be a factor. When a final group of students is nominated for admission, the forty-member full admission committee reconsiders the racial composition of the students tentatively nominated for admission, and looks at legacy status, recruited athlete status, financial aid eligibility, and race. The final step “lops” the group, that is, cuts out those students who are over-represented in certain categories and, thereby, allows more room for African American and Hispanic applicants.
The UNC applicant review is similarly a multi-step process, with race considered at every step, constituting a substantial “plus” added to the eligibility for admission.
The organization Students for Fair Admissions, Inc. (SFFA) is not the first challenger of affirmative action based on race in higher education. Beginning in 1978, in the Regents of the University of California v. Bakke decision, through the Gratz v. Bollinger and Grutter v. Bollinger decisions of 2003 and the most recent decision in Fisher v. University of Texas at Austin in 2016, the Supreme Court has consistently refused to endorse racial quotas as part of a higher education admissions process, but has approved use of narrowly tailored considerations of race as one factor in achieving diversity in the institution’s student population. Therefore, taking race into consideration as part of the admissions process has passed strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment… until now.
The SFFA majority opinion, published on June 29, 2023, reviewed the sad history of segregation after the Civil War until “full compliance” with Brown v. Board of Education “required schools to admit students on a racially nondiscriminatory basis.” The majority recounted the decisions preceding SFFA, especially noting Grutter’s listing of the two dangers of race-based governmental action, (1) that illegitimate stereotyping would occur, e.g., believing that all persons of color would think alike, and (2) that race would not be used as a plus, but as a negative, to harm non-minority applicants for admission to higher education institutions.
The majority also asserted that the benefits of diversity in higher education cannot be measured by meaningful judicial review and therefore cannot count as a compelling governmental interest under the Fourteenth Amendment.
In addition, the majority recounted that then-Justice Sandra Day O’Connor, to placate the naysayers on the Grutter court, suggested that a time would come when consideration of race in admissions would no longer be necessary, that diversity would be accomplished in 25 years, that is, in 2028. However, the majority noted that both Harvard and UNC admit that they have no intentions of ending their race-based admissions systems in any time period.
SFFA finally won the day. Consideration of race in college and university admissions is now unconstitutional and prohibited.
However, after trashing the arguments of the dissents, the majority “reassures” the reader that,
“[N]othing 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 . . . the student must be treated based on his or her experiences as an individual—not on the basis of race.”
That this “life story” essay could be the subject of “meaningful judicial scrutiny” demonstrates the superficiality of the majority’s rationale for their decision to end affirmative action based on race. The concurrences contribute nothing more.
What Does This Mean for Your College or University?
College and university administrators who have labored to achieve diverse student representation on their campuses without race-conscious admissions processes because of state laws forbidding such processes, most notably California, are dismayed by the SFFA decision.
They know how hard they have had to work to achieve any acceptable measures of student diversity. They know this decision will slow down the achievement of a diverse student population on all campuses of higher education. It will slow down the achievement of equality among all peoples. “Whiteness” will remain dominant in the most prestigious institutions of higher education, and, therefore, whiteness will retain its control over corporate boards, over government, over decisions in so many spheres, to the perpetuation of discrimination and inequality among peoples.
If you have any questions, please consult with your legal counsel or one of the higher education attorneys at KingSpry.
Supreme Court Says “NO” to Affirmative Action
Posted on July 11th, 2023
by Dr. Kathleen Conn
“You can please some of the people all of the time, you can please all of the people some of the time, but you can’t please all of the people all of the time”.” — John Lydgate, 14th century poet priest
Lydgate’s famous quotation characterizes most U.S. Supreme Court decisions, but none more so than its recent decision ruling that affirmative action on the basis of race in higher education admissions violated the Equal Protection Clause of the Fourteenth Amendment.
The Court’s decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, consolidated with the Students for Fair Admissions, Inc. v. University of North Carolina (UNC), also reinforced the typical 6-3 conservative/liberal split among the Justices.
Chief Justice Roberts authored the majority opinion, joined by Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. Justice Thomas filed a lengthy concurrence. Gorsuch also filed a concurrence, joined by Thomas. Kavanaugh filed another concurrence. Justice Sotomayor filed a dissenting opinion, joined by Justice Kagan. Justice Jackson took no part in the discussion of the case because of her previous association on an advisory board for Harvard. However, she filed her dissent with reference to the part of the majority decision referring to UNC.
Both Harvard and UNC Chapel Hill receive tens of thousands of applications for admission each year, but each accepts only a relatively small percentage of freshmen each year, Harvard only 0.32% and UNC approximately 9.7%, the percentages using the data provided in the majority opinion. Both institutions have a multi-step review process to select students for admission.
At Harvard, an application for admission is first screened and numerically scored in six different categories: academic, extracurricular, athletic, school support, personal, and “overall,” which is the category where race can be a factor. When a final group of students is nominated for admission, the forty-member full admission committee reconsiders the racial composition of the students tentatively nominated for admission, and looks at legacy status, recruited athlete status, financial aid eligibility, and race. The final step “lops” the group, that is, cuts out those students who are over-represented in certain categories and, thereby, allows more room for African American and Hispanic applicants.
The UNC applicant review is similarly a multi-step process, with race considered at every step, constituting a substantial “plus” added to the eligibility for admission.
The organization Students for Fair Admissions, Inc. (SFFA) is not the first challenger of affirmative action based on race in higher education. Beginning in 1978, in the Regents of the University of California v. Bakke decision, through the Gratz v. Bollinger and Grutter v. Bollinger decisions of 2003 and the most recent decision in Fisher v. University of Texas at Austin in 2016, the Supreme Court has consistently refused to endorse racial quotas as part of a higher education admissions process, but has approved use of narrowly tailored considerations of race as one factor in achieving diversity in the institution’s student population. Therefore, taking race into consideration as part of the admissions process has passed strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment… until now.
The SFFA majority opinion, published on June 29, 2023, reviewed the sad history of segregation after the Civil War until “full compliance” with Brown v. Board of Education “required schools to admit students on a racially nondiscriminatory basis.” The majority recounted the decisions preceding SFFA, especially noting Grutter’s listing of the two dangers of race-based governmental action, (1) that illegitimate stereotyping would occur, e.g., believing that all persons of color would think alike, and (2) that race would not be used as a plus, but as a negative, to harm non-minority applicants for admission to higher education institutions.
The majority also asserted that the benefits of diversity in higher education cannot be measured by meaningful judicial review and therefore cannot count as a compelling governmental interest under the Fourteenth Amendment.
In addition, the majority recounted that then-Justice Sandra Day O’Connor, to placate the naysayers on the Grutter court, suggested that a time would come when consideration of race in admissions would no longer be necessary, that diversity would be accomplished in 25 years, that is, in 2028. However, the majority noted that both Harvard and UNC admit that they have no intentions of ending their race-based admissions systems in any time period.
SFFA finally won the day. Consideration of race in college and university admissions is now unconstitutional and prohibited.
However, after trashing the arguments of the dissents, the majority “reassures” the reader that,
“[N]othing 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 . . . the student must be treated based on his or her experiences as an individual—not on the basis of race.”
That this “life story” essay could be the subject of “meaningful judicial scrutiny” demonstrates the superficiality of the majority’s rationale for their decision to end affirmative action based on race. The concurrences contribute nothing more.
What Does This Mean for Your College or University?
College and university administrators who have labored to achieve diverse student representation on their campuses without race-conscious admissions processes because of state laws forbidding such processes, most notably California, are dismayed by the SFFA decision.
They know how hard they have had to work to achieve any acceptable measures of student diversity. They know this decision will slow down the achievement of a diverse student population on all campuses of higher education. It will slow down the achievement of equality among all peoples. “Whiteness” will remain dominant in the most prestigious institutions of higher education, and, therefore, whiteness will retain its control over corporate boards, over government, over decisions in so many spheres, to the perpetuation of discrimination and inequality among peoples.
If you have any questions, please consult with your legal counsel or one of the higher education attorneys at KingSpry.