Monday, July 3, 2023

Here is what the Supreme Court did in the affirmative action case

The Supreme Court has held that public and private colleges may not take an applicant's race into account in making admissions decisions. This ruling overturns prior cases that held colleges may do so in the interests of maintaining a racially-diverse student body. 

The case is Students for Fair Admissions v. Harvard College, issued on June 29. The case involves Harvard and the University of North Carolina, which have multi-faceted admissions processes that take a variety of factors into account, including grades, leadership, geography, legacy admissions, extracurricular activities, athletics, and race/ethnicity, among other factors. In 1978, 2003 and 2013, the Court held that colleges may include race as a factor to advance racial diversity in the student body. In all likelihood, those cases are now overruled, as the legal reasoning in this case makes it almost impossible for universities to satisfy the stringent legal test applied by the Court.

The 6-3 majority rules that the Equal Protection Clause and Title VI of the Civil Rights Act prohibit the use of race in making admissions decisions unless the colleges can advance a compelling interest in doing so and that its method is the most narrowly-tailored means to do so. The compelling interest test has a long pedigree in Supreme Court jurisprudence, allowing for some race-based decisionmaking in rare instances. But most cases fail under the compelling interest test. While the Equal Protection Clause and Title VI do not make reference to the compelling interest test, the Supreme Court created it decades ago as a means to apply these constitutional and statutory provisions.

For the Chief Justice, writing on behalf of the six Republican-appointed justices, the colleges lose the case because their articulated goals in considering race in the admissions process is not measurable. These goals include training future leaders, preparing graduates for a pluralistic society, improving the educational experience through diversity and the different perspectives that come with diversity, and breaking down racial stereotypes. Since these goals cannot be measured, Chief Justice Roberts says, the admissions process cannot survive what we call "strict scrutiny" as they cannot be proven to be narrowly tailored to satisfy the college's goals. Nor can the colleges show a meaningful connection between their means and goals. The majority also suggests such an admissions process may stereotype applicants in the believe that a Black applicant always brings a unique perspective to the table. The Court will not take the colleges' word for it that the admissions process will yield the results they articulate. 

The dissenting opinions are scathing. Justice Sotomayor notes that the Equal Protection Clause was adopted following the Civil War in a manner that favored Black Americans who needed certain benefits in the post-slavery period and that the Equal Protection Clause does not therefore require strict racial-neutrality. She notes that American society has a long way to go before the races are treated equally, and that race-conscious admissions have benefited traditionally underrepresented groups. Sotomayor further notes that colleges have a compelling interest in student diversity and that, unlike this case, the Court in the past, in other legal contexts, has upheld other goals that were not easily measurable. She argues that the Court can easily measure the colleges' goals in this case. She further analyzes the admissions policy to show that even under the Harvard and UNC programs, white applicants still have the advantage (particularly with legacy admissions) and after full discovery and a trial in the lower courts in this case, no one has proven that any underrepresented racial minority was ever admitted to these colleges on the basis of race alone. 

Justice Jackson, the only Black woman on the Court, runs through the policy reasons why colleges should be able to consider race in making admissions decisions, citing studies and statistics that Black Americans are still lagging behind economically and on other societal indicators that are no fault of their own. 

The dissenting justices have not held back in their critique of the majority's analysis. They also show how legal issues like this can be decided differently depending on who sits on the Court and how they interpret prior Supreme Court rulings. 

Justice Sotomayor notes that while Justice Thomas, in his concurrence, said that the use of race in making holistic admissions decisions hurts the minority beneficiaries of these programs because they are less academically prepared than white and Asian students with whom they compete, "Justice Thomas speaks only for himself." She also says the research that Thomas relies upon to make this point has been debunked, and that research now shows that these policies result in higher graduation rates and higher earnings, and that the "mismatch" theory (that underperforming racial minorities will wind up at universities where they cannot compete) is no longer legitimate. And then the kicker: "The three Justices of color on this Court [Sotomayor, Thomas and Jackson] graduated from elite universities and law schools with race-conscious admissions programs, and achieved successful legal careers, despite having different educational backgrounds than their peers."

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