The Supreme Court today issued its long-awaited decision on whether the admissions systems used by Harvard College and by the University of North Carolina unlawfully discriminate on the basis of race. In a combined ruling in the two cases, a six-justice majority ruled that the admissions systems violate Equal Protection standards—standards that apply directly to UNC as a state institution under the Equal Protection Clause and that apply to Harvard, as a recipient of federal funding, via Title VI of the Civil Rights Act of 1964.
The Chief Justice wrote the majority opinion, and Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett joined it in full. Thomas, Gorsuch, and Kavanaugh each wrote a concurring opinion. (Thomas’s opinion is especially powerful, and I hope to address it in a separate post.) Justice Sotomayor wrote one dissent, and Justice Jackson wrote the other. (Each joined the others, and Kagan joined both.) Justice Jackson recused from the Harvard case, so the vote was 6 to 2 in that case and 6 to 3 in the UNC case.
The Chief’s opinion strikes me as his greatest opinion in his eighteen years on the Court. I’ll quickly and selectively summarize it here and add some commentary at the end. (Much of what I include below consists of direct quotes, but I’ve removed the quotes in order to minimize the clutter.)
1. In Brown v. Board of Education (1954), the Court overturned the separate-but-equal doctrine of Plessy v. Ferguson (1896) and set firmly on the path of invalidating all de jure racial discrimination by the States and the Federal Government. Brown established that the time for making distinctions based on race had passed. In the decades that followed, this Court continued to vindicate the Constitution’s pledge of racial equality. These decisions reflect the core purpose of the Equal Protection Clause: doing away with all governmentally imposed discrimination based on race.
Eliminating racial discrimination means eliminating all of it. Any exception to the Constitution’s demand for equal protection must survive a daunting two-step strict-scrutiny standard. (Pp. 10-21.)
2. In Bakke (1978) and Grutter (2003), we have permitted race-based admissions only within the confines of narrow restrictions. University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and at some point they must end. Harvard’s and UNC’s admissions systems fail each of these criteria. (Pp. 22-34.)
a. We have required that universities operate their race-based admissions programs in a manner that is sufficiently measurable to permit judicial review under the strict-scrutiny standard. But the interests that Harvard and UNC view as compelling cannot be subjected to meaningful judicial review. Goals such as “training future leaders” and “better educating its students through diversity,” while commendable, are not sufficiently coherent for purposes of strict scrutiny. How is a court supposed to measure any of these goals, and how is it to know when they have been attained?
The Harvard and UNC admissions programs also fail to articulate a meaningful connection between the means they employ and the goals they pursue. It is far from evident how assigning students to any of various racial categories and making admissions decisions based on them furthers the educational benefits that the universities claim to pursue. The racial categories are also imprecise in many ways. Some (“Asian”) are plainly overbroad, others (“Hispanic”) are arbitrary or undefined, and still others (why isn’t an Iraqi “Asian”?) are underinclusive. By focusing on underrepresentation, Harvard and UNC would apparently prefer a class with 15% of students from Mexico over a class with 10% of students from several Latin American countries, simply because the former contains more Hispanic students than the latter. What sense does that make? Harvard and UNC are not entitled to deference when they classify on the basis of race. (Pp. 22-26.)
b. The race-based admissions systems that Harvard and UNC employ also fail to comply with the twin commands of the Equal Protection Clause that race may never be used as a negative and that it may not operate as a stereotype. Their claim that race is never a negative factor cannot withstand scrutiny, as college admissions are zero-sum. They acknowledge that race is a determinative plus-factor for some admitted students. Their programs also rest on the offensive and demeaning stereotype that there is an inherent benefit in race for race’s sake, that students of a particular race think alike (at the very least in the sense of being different from nonminority students). (Pp. 27-30.)
c. The admissions programs also lack the logical end point that Grutter insisted on. Their numbers metric amounts to unconstitutional race balancing. (Pp. 30-34.)
3. The dissents would misread the Fourteenth Amendment to permit state actors to remedy the effects of societal discrimination through explicitly race-based measures. But the Court has long rejected that thesis. The dissents also misread our precedents on race-based admissions.
Justice Sotomayor’s dissent would have the judiciary pick winners and losers based on the color of their skin. While she would certainly not permit university programs that discriminated against black and Latino applicants, she is perfectly willing to let the programs here continue. Separate but equal is inherently unequal, said Brown. It depends, says the dissent. Justice Sotomayor espouses a claim to power so radical, so destructive, that it required a Second Founding (the post-Civil War Amendments) to undo. (Pp. 34-39.)
4. 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. But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today. What cannot be done directly cannot be done indirectly. (P. 39.)
* * *
A few quick comments:
A. How big a loophole is in point 4? I don’t think it’s very large (and I also think it’s unavoidable). Per point 2.a., in order to satisfy strict scrutiny, a university will need to operate its admissions program in a way that is sufficiently measurable. That will require considerable transparency, if and when a program is challenged. Any evidence that the university is using its supposedly individualized considerations to achieve a numerical goal for students of a particular race or ethnicity should doom that program. There will be no good reason for admissions officers to be monitoring the racial composition of admitted students. But maybe I’m being overly optimistic.
B. What does this ruling mean for alternative means—e.g., admitting the top ten percent of students from in-state high schools—that would enhance the racial and ethnic diversity of the student body? I’d think that the question is whether the alternative means has been adopted for the purpose of enhancing racial/ethnic diversity or whether it has been adopted for nonracial means (e.g., socioeconomic diversity) and just happens to also increase racial/ethnic diversity. This is likely to be a flash point in future litigation, and the scope and continuing vitality of the Court’s 2016 ruling in Fisher v. University of Texas (so-called Fisher II) will be hotly contested.
C. The colorblindness principle set forth in today’s ruling applies not only to admissions programs but to everything that a state university or a private university subject to Title VI does. So universities will need to dramatically reform their DEI bureaucracies—or, better yet, abolish them.