The Supreme Court ends Affirmative Action

Justice Roberts ends race-based college admissions

Sixteen years ago, Chief Justice John Roberts wrote these wise words: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Today, the Chief Justice put action behind that statement and held unlawful the race-based admissions of Harvard College and the University of North Carolina (UNC), declaring they violated the Equal Protection Clause of the Fourteenth Amendment. In doing so, he ended Affirmative Action in the colleges.

At issue in this particular case were the programs of Harvard and UNC, both of which consider race in determining which students get admitted. In Harvard’s admission process, race is determinative “for a significant percentage ‘of all admitted African American and Hispanic applicants.’” It’s also determinative for a large number of Asians and whites who are not admitted based on their race. At UNC, “underrepresented minority students” were rated higher “than their white and Asian American peers.” Race is a key factor – sometimes, the key factor – in the admissions process of these universities (and of universities around the country).

Applicants knew as much. Paid admissions advisors would “tell high school students of Asian descent to downplay their heritage to maximize their odds of admission.” Asians were instructed to not attach a photograph to their application, understanding that this would result in an automatic negative mark from many colleges. This was all because even the highest-achieving Asian students would be denied in favor of students of other races. (In spite of these facts, Justice Sotomayor, in her dissent, would somehow argue in her dissent that “race-conscious admissions benefit . . . the Asian American community.”)

In light of these facts, Justice Roberts ruled that race-based admissions must be “invalidated under the Equal Protection Clause of the Fourteenth Amendment.” Universities “may never use race as a stereotype or negative.”

Justice Roberts discarded the purported “benefits” of affirmative action, such as “training future leaders” and better education “through diversity”, pointing out that these goals “are not sufficiently coherent for purposes of strict scrutiny.” (Strict scrutiny asks two questions: (1) whether racial classification furthers a compelling governmental interest, and (2) whether the government’s use of race is narrowly tailored – meaning necessary – to achieve that interest.)

To the majority, these “goals” were unknowable and vague and unmeasurable. For example, “How many fewer leaders Harvard would create without racial preferences”? That’s a good question – and Harvard couldn’t provide an answer.

While the universities made those arguments in favor of affirmative action, both Harvard and UNC suggested “that race is not a negative factor because it does not impact many admissions decisions.” Yet the universities maintained “that the demographics of their admitted classes would meaningfully change if race-based admissions were abandoned.” In doing so, they admitted that race was used as a “negative” and that they violated a central principal of the Fourteenth Amendment: “The “[e]qual protection of the laws is not achieved through indiscriminate imposition of inequalities.”

Justice Roberts would conclude:

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.

Justices Sotomayor and Jackson both wrote dissenting opinions, which Justice Kagan joined. There was no surprise that they argued in favor of affirmative action. Likewise, there was no surprise that the dissents of Sotomayor and Jackson were weak and unpersuasive.

Justice Sotomayor harped that the Court rolled back “progress.” It cemented “a superficial rule of colorblindness as a constitutional principle.” To Sotomayor, “the Equal Protection Clause of the Fourteenth Amendment enshrines a guarantee of racial equality” - a guarantee which allows for discrimination to achieve just racial results. Thus, by ending affirmative action, the court subverted “the constitutional guarantee of equal protection.” (For Sotomayor, unconstitutional means can be used to achieve constitutional ends.)

Justice Jackson wrote that the race-based discrimination by the colleges would allow students to thrive in a “diverse learning environment.” Thus, the Court needed to “get out of the way” and let the universities continue to discriminate. The Court’s announcement of “colorblindness for all” would only stop the colleges from trying to solve “America’s real-world” racial problems. In any event, according to Jackson, the Fourteenth Amendment doesn’t preclude racial discrimination where the end of racial discrimination is “the maintenance of freedom.”

The dubious pronouncements of Justices Sotomayor and Jackson were decimated by Justice Roberts. He argued that “Lost in the false pretense of judicial humility that the dissent espouses is a claim to power so radical, so destructive, that it required a Second Founding to undo.” The Chief Justice also observed why the dissent’s argument was particularly disturbing:

Most troubling of all is what the dissent must make these omissions to defend: a judiciary that picks winners and los­ers based on the color of their skin. While the dissent would certainly not permit university programs that discrimi­nated against black and Latino applicants, it is perfectly willing to let the programs here continue. In its view, this Court is supposed to tell state actors when they have picked the right races to benefit. Separate but equal is “inherently unequal,” said Brown. 347 U. S., at 495 (emphasis added). It depends, says the dissent.

Justice Thomas had harsher words for Justice Jackson. She would replace our constitutional structure “with an organizing principle based on race.” She uses observations about statistical racial disparities to “label all blacks as victims.” Justice Jackson’s dissent isn’t the “vanguard of the innocent and helpless” but a call for “empowered privileged elites” to silo us into “racial castes” and pit “those castes against each other.” Ouch.

Make no mistake - this is a significant victory not just for the rule of law and equal protection under the law, but also for the students who were victimized by colleges for being born the wrong race. It ends years of discrimination - but will also require vigilance, as we can be sure many universities will used some sore of pretext as a substitute for race-based admissions. The fight isn’t over.¹

1. Chief Justice Roberts writes “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.” However, applicant essays (or other submissions) referencing race cannot be used by colleges to get around the race-based admissions ban: “What cannot be done directly cannot be done indirectly.”