Friday, June 30, 2023

Supreme Court (Effectively) Ends Affirmative Action in Higher Education

The Supreme Court ruled on Thursday that race-based affirmative action programs at Harvard and the University of North Carolina violated Title VI of the Civil Rights Act and the Equal Protection Clause, respectively.

Still, the Court didn't categorically overturn all race-based affirmative action programs; instead, it seemed to leave a theoretical possibility that a school could design a program to meet its tightened test. But at the same time, under the ruling it's hard to see how a school could "narrowly tailor" a program to serve a sufficiently "compelling interest" to meet the strict-scrutiny test that the Court applied in the cases.

The ruling doesn't address whether programs at the military academies violate equal protection. And it suggests that schools could use race-neutral means to achieve racial diversity, including considering student admission essays that focus on a student's race (by overcoming racial adversity, for example). But the Court also cautioned that schools shouldn't use this kind of admission statement in ways that would undermine the Court's core holding--that government labeling by race (for any purpose) is highly suspect, and subject to the most rigorous judicial scrutiny.

All this means that schools that seek racial diversity will scramble now to figure out how to achieve it in race-neutral ways. And that, in turns, means that we'll see new rounds of litigation for years to come, challenging those efforts as merely alternative forms of racial discrimination in disguise.

In short, the Court in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College held that the schools' programs didn't satisfy strict scrutiny, because (1) their interest (achieving the educational benefits of diversity) was too loosely defined to be "compelling," and (2) their programs don't serve this interest, anyway, because the racial categories that the schools use are "imprecise." Moreover, the Court said that the schools' use of race stereotypes applicants of the same race (by assuming they all think alike), harms certain students of other races, and lack an endpoint.

The Court noted in footnote four that the ruling doesn't necessarily apply to the U.S. military academies--that they have "distinct interests" that might set them apart. The Court also  noted that "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." But the Court quickly warned that schools shouldn't use this opening to side-step its ruling--to use race, but try to put it under the radar.

Justice Thomas concurred, writing "to offer an originalist defense of the colorblind Constitution; to explain further the flaws of the Court's [affirmative action] jurisprudence; to clarify that all forms of discrimination based on race--including so-called affirmative action--are prohibited under the Constitution; and to emphasize the pernicious effects of all such discrimination." Justice Gorsuch concurred, joined by Justice Thomas, "to emphasize that Title VI of the Civil Rights Act of 1964" also (in addition to the Equal Protection Clause) prohibits the schools' race-based affirmative action programs. Justice Kavanaugh concurred, arguing that the ruling "is consistent with and follows from the Court's equal protection precedents . . . ."

Justice Sotomayor wrote a scathing dissent, joined by Justices Kagan and Jackson, arguing that the ruling "stands in the way [of the promise of Brown v. Board of Education] and rolls back decades of precedent and momentous progress."

Justice Jackson wrote an equally scathing dissent, joined by Justices Sotomayor and Kagan. She wrote "to expound upon the universal benefits of considering race in this context" and to point out how the plaintiffs' position and the Court's ruling "blinks both history and reality in ways too numerous to count."

Both dissents offered a fabulous history lesson on race . . . and a thorough rejoinder to Justice Thomas's "originalist" view.

https://lawprofessors.typepad.com/conlaw/2023/06/supreme-court-effectively-ends-affirmative-action-in-higher-education.html

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