Yesterday the Supreme Court issued a great and historic decision in Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina, ending racial preferences in the education context.
This has been a long time coming. For decades, the world of university admissions has been plagued by muddled Supreme Court precedents that failed to call out the racial discrimination that has become a fixture in university admissions. Such discrimination has occurred under the rationale that racial preferences advance “diversity,” which a fragmented Court in Regents of the University of California v. Bakke (1978) seemed to validate by way of an opinion by Justice Lewis Powell that found such a rationale for preferences acceptable in the context of a “holistic” admissions policy. That view was solidified by a majority of the Court 25 years later in Grutter v. Bollinger—a shaky opinion on its own terms that projected “racial preferences will no longer be necessary” in another 25 years. Predictions aside, no end to such preferences was in sight, and Grutter did not last much beyond its 20th anniversary a week ago. Finally, the Court has effectively overruled those precedents and allowed the principle of a colorblind Constitution to prevail.
The institutions sued by Students for Fair Admissions, Harvard and the University of North Carolina (UNC), are respectively private and state universities. The challenge to Harvard’s use of race in college admissions arose under Title VI of the Civil Rights Act of 1964, an antidiscrimination provision that applies to private universities that accept federal financial assistance. But since the Court has held that discriminatory conduct that violates the Fourteenth Amendment’s Equal Protection Clause also violates Title VI, both cases centered on the constitutional standard—and both institutions were held to have violated it by using race in their decisions to admit or reject students.
Chief Justice John Roberts’ opinion for the Court noted the Fourteenth Amendment framers’ aspiration to eliminate distinctions based on race or color from the law. We have previously seen a divide on the Court in recognizing this basic aspect of the original meaning of the Fourteenth Amendment, with Justice Ketanji Brown Jackson prominently in denial on this point during oral argument in another case. That divide played out in yesterday’s 6–3 ruling, with Justices Jackson and Sonia Sotomayor penning dissents, both joined by each other and by Elena Kagan, that pushed back against colorblindness. (Jackson did not participate in the Harvard case, so the margin in that case was 6–2 and her dissent applied only to the UNC case.)
Justice John Marshall Harlan advanced a colorblind Constitution in his lone dissent in Plessy v. Ferguson (1896). The majority of that Court notoriously validated the separate-but-equal standard that would stymie the framers’ aspirations for generations. Roberts noted “the inherent folly of that approach—of trying to derive equality from inequality.” Of course, Brown v. Board of Education (1954) changed that, overturning Plessy by invalidating de jure racial discrimination, regardless of whether “physical facilities and other ‘tangible’ factors may be equal.” While the dissenters clung to later decisions’ tolerance of the use of race in university admissions, Roberts scathingly exposed their departure from Brown: The dissenters were defending
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.
The system in place in elite universities was untenable. Asian American applicants in particular faced the starkest discrimination of any racial or ethnic group. An irony not lost on the Court is that a form of such discrimination—the internment of Japanese Americans during World War II—was validated by the Court under supposedly “the most rigid scrutiny” in Korematsu v. United States (1944). After skewering the universities for the incoherence and arbitrariness of their racial classifications, Roberts noted that Jackson’s dissent openly abandoned strict scrutiny. She called for “this Court to get out of the way” in deference to universities and “experts.” Roberts quipped, “An opinion professing fidelity to history (to say nothing of the law) should surely see the folly in that approach.”
Both Sotomayor’s and Jackson’s opinions professed fidelity to history, but for all the historical content they offered, they failed to rebut either the majority or Justice Clarence Thomas’ concurring opinion, which laid out the originalist pedigree of the Constitution’s colorblindness. “In the wake of the Civil War,” Thomas asserted, “the Framers of the Fourteenth Amendment charted a way out: a colorblind Constitution that requires the government to, at long last, put aside its citizens’ skin color and focus on their individual achievements.” He reviewed debates around—and the text of—federal Reconstruction-era enactments including the landmark Civil Rights Act of 1866 and Civil Rights Act of 1875, both of which prohibited racial discrimination, including segregation in various modes of public accommodations and transportation in the latter case. Another statute, the Freedmen’s Bureau Act of 1866, provided relief based on status as a former slave (plus refugees), not based on race per se. Even more obscure statutes that provided special procedures to pay those who served in black regiments during the Civil War, who were ill-served by the existing system, and to aid “freedmen or destitute colored people” living in shantytowns in the District of Columbia were examples of government remedying discrimination that would likely survive strict scrutiny.
The liberal justices are on the same page as to the existence of the profound oppression of slavery and discriminatory laws that followed emancipation. But they ignored the voluminous evidence of the framers’ aspirations to abolish racial distinctions and made unconvincing attempts to frame anti-discrimination statutes as somehow reinforcing such distinctions—a sleight of hand captured in the phrase “race consciousness.” The dissenters did not dispute that the rare Reconstruction-era statutes targeting particular subsets of African Americans identified by race were in fact remedial. Then again, such distinctions might not matter to justices who want the Court to abandon strict scrutiny to begin with. Their blind spot was illustrated by Jackson at one point asserting that “Justice Harlan knew better”—an intriguing observation given his embrace of colorblindness and more frequent appearances in Thomas’ concurrence—and at another point accusing the current Court of imposing “‘colorblindness for all’ by legal fiat,” acting “[w]ith let-them-eat-cake obliviousness.”
Another takeaway from this case is that no group benefits from a system of racial preferences—even those who belong to groups whose admissions numbers increase. As Thomas put it, “all racial stereotypes harm and demean individuals.” He pointed out that there are studies that show diminished academic performance for some who are supposed to benefit from such preferences, and even those who succeed academically face stigmatizing questions as to whether racial preferences made a difference for them, whether or not they in fact did.
A final note: This victory is a huge accomplishment for the firm Consovoy McCarthy PLLC and the late Will Consovoy, who died in January. It will always be a part of Consovoy’s legacy.