SCOTUS strikes at affirmative action…Khuzair Raheem
The Supreme Court of the United States (SCOTUS) on June 29, 2023 opined a landmark decision in Students for Fair Admissions, Inc v President and Fellows of Harvard College and its companion case titled Students for Fair Admissions v University of North Carolina, by constructively quashing the precedent, as laid down in the celebrated Grutter v Bollinger (2003) and Regents of the University of California v Bakke (1978).
The case concerned race-based affirmative action programmes in college admissions processes and SCOTUS declared them unconstitutional, being violative of the Equal Protection Clause of the 14th Amendment to the US constitution (constitution). The decision, rendered in a 6-to-3 ruling reversed the decision of the United States Court of Appeals for the 1st Circuit. Chief Justice John Roberts, delivered the majority opinion, while Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson filed dissenting opinions.
It is imperative to understand the meaning of the term affirmative action, while also constructing a definitive timeline, in order to comprehend the consequences of the decision. Affirmative action refers to any set of policies in place to ensure equal opportunity and prevent discrimination based on a broad range of identities, including race, sex, gender, religion, national origin and disability. Originally introduced on a large scale in the 1960s in the US to address racial discrimination, affirmative action policies typically appear in employment and education contexts. They are most often discussed in relation to college admissions decisions in the US, since a number of schools have established protocols that aim to increase the diversity of their student bodies by considering an applicants race.
The first major affirmative action policy in the US was put into place in September 1965, when then-president Lyndon B Johnson issued Executive Order 11246, which prohibited employment discrimination based on race, color, religion and national origin by organizations that received federal contracts and subcontracts, respectively.
The case came to the United States Court of Appeals for the 1st Circuit, on a writ of certiorari. The Court of Appeals on November 12, 2020 affirmed the decision of the United States District Court for the District of Massachusetts, finding that: Harvards race-conscious admissions program does not violate Title VI of the Civil Rights Act of 1964. Consequently, on February 25, 2021 Students for Fair Admissions, Inc (SFFA) appealed to SCOTUS which agreed to grant rights of audience to SFFA, and on January 24, 2022 consolidated the same with Students for Fair Admissions, Inc v University of North Carolina (later the cases were un-consolidated).
The plaintiff in the instant case: SFFA, a non-profit organization whose stated purpose is to defend human and civil rights, secured by law, including the right of individuals to equal protection under the law filed separate lawsuits against Harvard University and University of North Carolina (the UNC). The lawsuits were over race-based university admissions, thereby challenging the legality of the race-conscious admission programmes used by the afore-mentioned institutions, which received federal funding and alleging that these programmes violated Title VI of the Civil Rights Act and the 14th Amendments Equal Protection Clause.
In the wake of the US civil war, the US Congress had proposed, and the states had ratified, the 14th Amendment, providing that: No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
To its patrons, the Equal Protection Clause represented a foundational principle the absolute equality of all citizens of the United States, politically and civilly, before their own laws. Congress was determined that the constitution should not permit any distinctions of law based on race or color. Similarly, Title VI of the Civil Rights Act states that No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.
SCOTUS in, Gratz v Bollinger, expounded that discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI. The USs top court, in, Gratz, took an all-inclusive and liberal approach by holding that a student admissions process that favours underrepresented minority groups did not violate the 14th Amendments Equal Protection Clause so long as it took into account other factors evaluated on an individual basis for every applicant.
In her majority opinion, Justice Sandra Day O Connor, held that the constitution does not prohibit the law schools narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body, while also exposing the liberal approach adopted by the court, to stand the test of time by enunciating that the court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.
In the decision dated June 29, 2023 SCOTUS explained that a university can consider a students race in its admissions process, as long as that use is contextual and does not operate as a mechanical plus factor. The SFFA v Harvard decision struck down both Harvard and UNCs admissions processes on the grounds that they: (1) fail strict scrutiny; (2) use race as a negative against certain groups and also as a stereotype; and (3) have no end point. It was held that, in recent years, Harvard has received roughly 35,000 applications for a class with about 1600 seats. The admissions process is exceedingly competitive, involving six different application components. Those components include interviews with alumni and admissions officers, as well as consideration of a whole range of information based upon; grades, test scores, recommendation letters and personal essays.
It was contended and this is where it gets interesting that even after so many layers of competitive review, Harvard typically ends up with about 2000 tentative admits, more students than the 1600 Harvard can cater to. To choose among those highly qualified candidates, Harvard considers plus factors, which can help tip an applicant into Harvards admitted class. Conclusively, to diversify its class, Harvard awards tips for a variety of reasons, including geographic factors, socioeconomic status, ethnicity, and race. Enthrallingly, according to documents filed by Harvard, more than 40 per cent of American universities, and 60 per cent of selective schools consider race to some extent when making admissions decisions.
Advocates of affirmative action say that many notable people have benefited positively from this policy. Michelle Obama has recalled her experience as one of the few black students on campus during her undergraduate years at Princeton University, explaining that she sometimes questioned if people assumed she had only been accepted because of affirmative action policies. But over time, she said, she and other students of colour showed that they too belonged in elite academic environments. While the policy of affirmative action wasnt perfect, she wrote, it helped provide new ladders of opportunity for those who, throughout our history, have too often been denied a chance to show how fast they can climb.
Associate Justice of SCOTUS Clarence Thomas recently acknowledged that he made it to Yale Law School based on affirmative action, while Associate Justice Ketanji Brown Jackson in her fiery dissent highlighted the decision as a tragedy for all.
Considering the foregoing, the crux of the debate lies in the question: does the SCOTUS decision pave a way forward for private and public universities receiving federal grants to consider race-based applications? Critics suggest that new class-based preferences (class-based affirmative action) could be structured to promote fairness in admissions that produces both race and class diversity.
For universities, the lowest-hanging fruit are the unfair preferences for children of alumni, professors and other staff members and for athletes in boutique sports like fencing and squash. Those preferences effectively serve as affirmative action for the rich and need to be struck down according to an expert writing in the New York Times. A new system of affirmative action, based upon economic disadvantage /socioeconomic status is also proposed as an alternative, in order to follow the SCOTUS decision in letter and spirit.
President Joe Biden reacted to the decisions by outlining a new standard where colleges take into account the adversity a student has overcome whether the student is from Appalachia or Atlanta. The Atlantic Magazine, in an article covering the decision, had a very striking and astounding tagline: The Supreme Court killed the College-Admissions Essay.
Courtesy The News