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The Unsurprising Affirmative Action Decision in Students for Fair Admissions v. Harvard

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Today in Students for Fair Admissions v. Harvard, the Supreme Court effectively ended the current regime of diversity-justified-race-based affirmative action in higher education. As the opinion for the Court by Chief Justice Roberts puts it:

University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and—at some point—they must end. Respondents’ admissions systems—however well intentioned and implemented in good faith—fail each of these criteria. They must therefore be invalidated under the Equal Protection Clause of the Fourteenth Amendment.

While the majority opinion is somewhat cagey about the extent to which it is overturning its prior precedents such as Grutter and Fisher as a formal matter, it does seem clear that going forward current practices at many elite universities will now be held unlawful. Here is the Court’s conclusion:

For the reasons provided above, the 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 stereotyping, and lack meaningful endpoints. We have never permitted admissions programs to work in that way, and we will not do so today.

At the same time, as all parties agree, 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. See, e.g., 4 App. in No. 21–707, at 1725–1726, 1741; Tr. of Oral Arg. in No. 20–1199, at 10. But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today. (A dissenting opinion is generally not the best source of legal advice on how to comply with the majority opinion.) “[W]hat cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows,” and the prohibition against racial discrimination is “levelled at the thing, not the name.” Cummings v. Missouri, 4 Wall. 277, 325 (1867). A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race.

Many universities have for too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice.

The majority opinion is generally unsurprising to anybody who has followed the issue and the litigation, and the same is generally true of the other separate opinions and dissents in the case as well. That said, many of them are still worth reading. I would particularly highlight Justice Thomas’s concurring opinion which offers—I think for the first time on the modern Court—”an originalist defense of the colorblind Constitution” and Justice Gorsuch’s concurring opinion which highlights the way these cases could and should be resolved more simply on the basis of Title VI of the Civil Rights Act.

Three additional observations:

One interesting claim made by the majority that I haven’t seem discussed so often is that “three out of every five American universities do not consider race in their admissions decisions.” (Footnote 9.) I had initially assumed that this reflected the large number of colleges that don’t really have selective admissions, and partly it does, but according to the Respondents’ Brief, where this figure comes from, even 40% of relative selective colleges don’t use race in admissions. This may provide some useful perspective to those of us who focus too often only on a subset of the bigger picture.

In any event, in my view the remaining two important questions for the effect of Students for Fair Admissions are these:

First, what kind of so-called “race neutral alternatives” will be allowed? The Court makes pretty clear that it will not be easy to use something like a “diversity statement” as a de facto affirmative action policy. But what about things like: eliminating standardized testing requirements, or giving preferences on the basis of geography, where the purpose of these things is to achieve a certain racial outcome? This is already the subject of litigation in the lower courts, especially in the magnet school context, and it is hard to imagine the Court will be able to avoid opining on it in the next decade. (My colleague Sonja Starr has an excellent article on this litigation which I recommend to those interested in these issues, though I do not agree with everything in it.)

Second, and more bluntly, how much will schools be able to just cheat? I think it is sometimes alleged, for instance, that some public institutions in states that have banned the use of race in admissions still use it de facto—but it has proved difficult in practice to prove whether or not this is true. Maybe this isn’t true, but in any event, the aftermath of Students for Fair Admissions is likely to test a range of enforcement possibilities, from discovery under the Federal Rules of Civil Procedure to, under some administrations, the powers of the Department of Justice and the Department of Education.

How exactly today’s decision will affect the world, it seems to me, depends a lot on these things.

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