DemDaily: Supreme Court Axes Affirmative Action

June 29, 2023

In a victory for conservatives, the Supreme Court of the United States (SCOTUS) this morning struck down affirmative action admission policies used by Harvard College and the University of North Carolina -- finding that the programs violate the Constitution's Equal Protection Clause.

The 6-3 decision in Students for Fair Admissions v. University of North Carolina, and 6-2 decision in Students for Fair Admissions v. Harvard, essentially end the systematic consideration of race in the admissions process.

Affirmative Action is a policy intended to end and redress the effects associated with past and present discrimination, with a focus on access to education and employment and granting special consideration to historically excluded groups, specifically racial minorities or women.

The court's decision effectively rolls back decades of precedent, beginning with the Supreme Court's landmark 1978 Regents of the University of California v. Bakke decision -- which validated limited consideration of race in university admissions as a way to combat historic discrimination.

That decision was affirmed in the court's 2003 ruling in Grutter v. Bollinger, in which the court upheld the University of Michigan Law School’s consideration of race “as one factor among many, in an effort to assemble a student body that is diverse."

In her majority opinion in that case, conservative Justice Sandra Day O’Connor cautioned, while “student body diversity is a compelling state interest,” race-conscious admissions policies should not last forever. In 25 years, she suggested, “the use of racial preferences will no longer be necessary to further the interest” of diversity.

The lawsuits against UNC and Harvard were brought by Students for Fair Admissions (SFFA), led by conservative legal strategist Edward Blum, who also founded the Project on Fair Representation -- which aims to end racial classifications in education, voting procedures, legislative redistricting, and employment.

SSFA first filed a lawsuit in federal district court against Harvard University on November 2014, but the case was paused amid other similar suits before making its way through the lower courts -- along with its companion case, Students for Fair Admissions v. University of North Carolina.

The two cases were originally granted certiorari by the Supreme Court in January 2022 and consolidated under the Harvard case. They were split for review, however, after Justice Ketanji Brown Jackson, appointed in April 2022, recused herself from the Harvard case as she was previously a member of the Harvard Board of Overseers. Oral arguments were heard in October 2022.

Writing for the conservative majority, Chief Justice John Roberts said, "The Court has permitted race-based college admissions only within the confines of narrow restrictions: such admissions programs must comply with strict scrutiny, may never use race as a stereotype or negative, and must -- at some point -- end. Respondents' admissions systems fail each of these criteria.

"Many universities," added Roberts, "have for too long wrongly concluded that the touchstone of an individual's identity is not challenges bested, skills built, or lessons learned, but the color of their skin. This Nation's constitutional history does not tolerate that choice."

The ruling also exempted military academies from the ban on race-conscious admissions "in light of the potentially distinct interests" they may present.

While Roberts did not explicitly say that the former precedents were reversed, Justice Clarence Thomas, in a concurring opinion, said that the precedent Grutter case was "for all intents and purposes, overruled."

In a scathing dissent, Justice Sonia Sotomayor wrote, "The Court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society."

Justice Ketanji Brown Jackson wrote: "With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces 'colorblindness for all' by legal fiat...Our country has never been colorblind. Given the lengthy history of state-sponsored race-based preferences in America, to say that anyone is now victimized if a college considers whether that legacy of discrimination has unequally advantaged its applicants fails to acknowledge the well-documented intergenerational transmission of inequality' that still plagues our citizenry. It is that inequality that admissions programs such as UNC’s help to address, to the benefit of us all. Because the majority’s judgment stunts that progress without any basis in law, history, logic, or justice, I dissent."

The implications of the Supreme Court's decision goes far beyond reshaping the college admissions process; it lays the foundation for reinterpretation of the Constitution's 14th amendment and the definition of "equal protection" under law.

It will certainly not be the last attempt to redefine aspects of the US Constitution under this court.

In an afternoon press conference today, President Biden condemned the decision, saying, "The court once again walked away from decades of precedent” by invalidating affirmative action. “In case after case...the court has affirmed and reaffirmed this view: that colleges could use race not as a determinative factor for admission, but as one of the factors among many in deciding who to admit from an already qualified pool of applicants."

Biden announced he was directing the Department of Education to "analyze what practices help build more inclusive and diverse student bodies and what practices hold that back,” citing legacy admissions as an example of reinforcing socioeconomic privilege in education.

Biden also warned of the broader affect on American society, saying, "companies who are already realizing the value in diversity should not use this decision as an excuse to turn away from diversity either."

"We can’t go backwards, said Biden. "We cannot let this decision be the last word. While the Court can render a decision, it cannot change what America stands for...We should never allow the country to walk away from the dream upon which it was founded: that opportunity is for everyone, not just a few."

In a separate decision this morning, SCOTUS unanimously ruled in favor of a US Postal Service mail carrier who refused to work on his Sabbath. In Groff v. Dejoy, the court found that an employer must accommodate an employee’s religious beliefs unless it can show that doing so would “result in substantial increased costs in relation to the conduct of” the employer’s business.

DemDaily: Supreme Court Strikes Down GOP Election Doctrine 6/27/23
DemDaily: One Year Later: After the Fall of Roe 6/26/23
DemDaily: Supreme Court Upholds Voting Rights Foundation 6/13/23
DemDaily: Legislating Hate 6/5/23
DemDaily: Distrust in Justice 4/27/23
DemDaily: Supreme Court Stays Abortion Pill 4/24/23

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Kimberly Scott

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Sources: SCOTUSBlog, NBC, ABC, Washington Post, The White House

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