Pillars of the Supreme Court of the United States (Photo Credit: Jesse Collins // Unsplash)

SCOTUS and Affirmative Action

Taking a look at the recent Court decision Students for Fair Admissions, Inc. v. President & Fellows of Harvard College.
Amy Hamm

On June 29, 2023, the United States Supreme Court released its decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College. In an opinion written by Chief Justice John Roberts, the Court ruled that the admissions programs at Harvard College and the University of North Carolina -- in which an applicant's race could be one factor either for or against the applicant's admission -- violated the equal protection clause of the 14th Amendment. Three justices dissented from the opinion, and many (including President Joe Biden) have expressed disagreement and disappointment with the ruling. Commentators argue about whether the case reflects an advancement or setback for the country. To better understand the case for ourselves, with the desire to consider all of the factors involved, we interviewed Professor Paolo Carozza of the Notre Dame Law School about the constitutional and legal reasoning in the Court's opinion and about the history of the 14th Amendment as it relates to college admissions. This article seeks to draw out the most helpful points from our conversation.

Despite the fact that affirmative action policies have elicited a partisan and often polarized response over the fast several decades, a political lens is not the most useful for understanding how or why the Supreme Court decided this case as they did. The tendency to jump to the polarized framework of our own choosing represents a broader problem, and one that is difficult to overcome.

As Professor Carozza explained, we often have a habit of “collapsing the legal and constitutional arguments with social and moral arguments. Supreme Court decisions become entirely reduced to the question of, from a political point of view or a policy point of view, ‘is this something we favor? Is it something we don't favor?’ As if that's the only thing that should determine the legal question behind it… Instead, law maintains its distinctive kind of utility in a society, especially a really complex pluralistic society like ours, in part by being something that is somewhat different from a pure, unrestricted moral argument about what we think is best for society.”

This most recent affirmative action case, therefore, is about more than just a policy that one can favor or reject. It also represents a distinctive point in a long and complex history of the Supreme Court interpreting laws in the aftermath of the Civil War and amid enduring racial prejudice and discrimination. Understanding this history requires starting from the 14th Amendment, which was added to the Constitution in 1868 in order to both ensure the full rights of citizenship to all Americans and to guarantee the equal protection of the laws for those citizens. Though race is not mentioned in the Amendment, it offered constitutional protection for newly emancipated, formerly enslaved persons from the possibility of state legislatures or Congress from passing legislation that could effectively re-enslave Black Americans. As Professor Carozza explained, the text of the 14th Amendment was intentionally race neutral, specifically to prevent the Southern states from attempting to, “reinstitute various kinds of categorizations on the basis of race.”

Numerous laws, both state and federal, have been challenged over the past 150 years for violating the equal protection clause of the 14th Amendment by treating people of different races differently. The subsequent body of case law that emerged has resulted in a predominantly colorblind interpretation of the Amendment, especially in light of the landmark Supreme Court decision in Brown v. Topeka Board of Education in 1954. In this case, Chief Justice Earl Warren famously stated in the unanimous decision that segregation of the races in public schools was unconstitutional. Importantly, this decision overturned previous Supreme Court precedent that had been established in the 1896 case of Plessy v. Ferguson. Plessy protected the creation of separate public facilities for white and Black Americans so long as those facilities were equal in quality. The Brown decision, instead, said that legally codified segregation practices violated the equal protection clause and that “separate is inherently unequal”.

However, disputes have continued to emerge regarding the purpose of the 14th Amendment and the way in which it ought to be interpreted by the Court. In fact, distinctions in interpretations represent that key disagreement between the majority and minority votes in Students for Fair Admissions v. Harvard.

Generally speaking, more conservative jurists tend to favor an interpretation of the 14th Amendment as a vehicle to achieve equality in the laws as they apply to people of different races, meaning that any law that treats different races differently would be unconstitutional. More liberal jurists read the 14th Amendment as a way to achieve social equality between the races, which as a legal principle can be used to justify policies that in fact do provide particular treatment for people of different races.

Over time, the Supreme Court has developed what is known as the “strict scrutiny” test to determine if laws that do in fact treat different races differently are constitutional. The laws must first “serve a compelling state interest” and second, be “narrowly tailored” to achieve that interest.

The Court has attempted to use this test on affirmative action policies, which refers to the practice of crafting policies with the stated purpose of generating equal opportunities for groups that have historically been discriminated against. Most often, these policies are used in the context of university admissions and employment and have been utilized by many colleges and work places to give a “plus” to minority group applicants. The practice has found itself at the crosshairs of Supreme Court litigation several times over the past few decades as the Court has struggled to offer a definitive opinion on affirmative action within the context of the 14th Amendment.

The Supreme Court first took on this practice in the 1978 case of Regents of the University of California v. Bakke, in which Allan Bakke, a white applicant, challenged the University of California’s admissions policies for medical school. Their policies resulted in minority applicants being admitted with lower MCAT and other academic scores compared to Bakke. He challenged these policies on the basis of the equal protection clause and argued that he was being discriminated against because of his race.

The resulting Supreme Court opinion upheld the practice of affirmative action, but hardly settled the issue. As Professor Carozza explained, “At the most simple, barest, superficial level, Bakke had five votes in favor of a policy that could take race into account in admissions. So at that level, that's one thing that Bakke did establish at that time. But more importantly, there was no majority agreement on any of the reasons why or the limitations on the extent to which it could be taken into account.”

The five votes in favor of the policy all yielded their own independent concurring opinions, rather than one majority opinion that the other justices signed on to in agreement. It was Justice Powell’s decision that ultimately became the “de facto standard.” Professor Carozza continued, “His opinion… reflected the fact that, both constitutionally and socially, there is a deep ambivalence in American society and within our history about how race is used. It recognizes that we want equality, recognizes that there's still the legacy of racism, but we are very uncomfortable with creating rules and institutions that entrench the categorization of people on the basis of race. So Powell's opinion says that you can take race into account, but only under certain strict conditions. It can't be used as a quota. You can't try to seek a certain percentage of racial representation in incoming classes. Race can only be used as a positive factor, a plus factor in the admission of people from racial minorities who presumptively have been disadvantaged.” In addition to providing a framework and limits on how race can be used in university admissions, Powell’s opinion suggested that any affirmative action policies should be temporary. Though he did not fully develop this idea, it would become an important point in future litigation.

The Court next took on affirmative action in a case related to admissions policies for the University of Michigan Law School in Grutter v. Bollinger in 2003. Here, the majority essentially upheld Justice Powell’s opinion from Bakke. Additionally, the 5-4 vote, with the majority opinion written by Justice Sandra Day O’Connor, codified the standards originally outlined by Powell several decades earlier, reaffirming that a racially diverse student body represented a compelling state interest and that universities could craft admissions policies that were narrowly tailored to this purpose. O’Connor, however, also more firmly stated that any affirmative action policies had to be temporary, offering a hypothesis of 25 years as an appropriate time frame for minority students to overcome historically discriminatory gaps in education and opportunity without the added boost provided by affirmative action policies.

While there were several additional intervening cases, the Court’s decision in this year’s Students for Fair Admissions v. Harvard offered the next substantive interpretation of the status of affirmative action cases relative to the 14th amendment.

Chief Justice Roberts’ majority opinion flipped the existing precedent established in Bakke and Grutter and deemed that affirmative action policies in university admissions are unconstitutional.

This decision is connected to the “strict scrutiny” test, and as Professor Carozza explained: “The whole point of strict scrutiny is that there's a reason to hold the government to a very high standard of justification, in part because what we're doing is allowing the government to do something that, in principle, the Constitution prohibits and we wouldn't want them to allow to do indiscriminately. So, requiring a measurable way of determining whether the compelling governmental interest is in fact being served is a way of enforcing that kind of strict scrutiny. Show us exactly the harm that you're remedying. Show us exactly how this particular program that you're proposing is going to be narrowly tailored to address that specific harm. And that's the way that we contain the possibility of the government simply overriding basic constitutional principles by saying, ‘well, we have a general interest in this, and so we're going to set aside the principle, because here is a social goal that's important to us.’”

By offering a remedy to an unspecified harm, Roberts contends that affirmative action programs have become too nebulous and unmeasurable in terms of their success. According to Professor Carozza, “I think it was undeniable that in the arguments that were being made by Harvard and North Carolina they essentially admitted that there's no endpoint (and therefore) no meaningful controls.” The Court may agree that having a diverse student body is important to help “foster better citizens,” but how would they determine when this goal has been achieved?

According to Professor Carozza, these kinds of generic policies that provide a “plus” for minority student applications have in fact created the kinds of categorization of minority students that Bakke and Grutter specifically warned against. He explained, “The reality of those of us who are in higher education is that we all know and we all see on a daily basis that racial preferences are very aggressively being used in all sorts of ways. The way the goal of diversity in higher education has been in fact implemented for the last 25 years is one where there are very crude, categorical, stereotypical racial preferences being imposed.”

As an example, Roberts, in his opinion, cited admissions information from Harvard that showed extremely consistent percentages of different minority groups being admitted to their undergraduate programs from year to year, numbers that may not officially represent a “quota,” but certainly look like it on paper. This provided further support for Roberts and the rest of the majority to conclude that the standards established in Bakke and Grutter had become untenable.

The fact that the Students for Fair Admissions represented Asian applicants to Harvard is also significant. As Professor Carozza commented, “Here it's really clear that the preferences for certain racial groups are being used invidiously in an active way to discriminate against another minority group, including another minority, for which there is also a long and ugly history of racial discrimination in this country.”

And, so, what does this mean for university admissions policies? Roberts leaves the door open for universities to consider race on a strictly individual basis, though with no corresponding policy of offering a “plus” on their application relative to other students. Students can, for example, use their personal essays to describe ways in which their race has shaped their experience, provided for leadership opportunities, or developed their interests and what they may want to study, all of which may be considered by admissions panels. It remains to be seen how universities will pivot their policies and what this might mean for other ways in which admissions panels offer a “plus” to certain applicants, such as legacy students (someone who is applying to a school that his or her parents/grandparents graduated from).

A final take-away in considering the past and future of affirmative action is to remember that the United States is still dealing with the sin of slavery and that we do have an enduring history of racialized discrimination that continues to impact our social and political realities. But the law can only do so much to resolve this issue, especially given the volatility of Supreme Court jurisprudence. Professor Carozza shared his thoughts on the limits on what role the law can play to ease our social plights, explaining, “both sides of the issue of affirmative action – whether you really are convinced that a colorblind society that has no racial distinctions imposed on us by law is the right ideal or that we're a deeply systemically racist society to the core and everybody's implicated in it and therefore all institutions should be taking race into account (the two extremes on the Court represented by Justices Thomas and Brown Jackson) – originate from the question of what kind of a society we ought to aspire to and from a desire for what is most human. For us and our friends, both of those extremes are reductive and insufficient to actually bring about the kind of change that would be from a Christian point of view, a more inclusive society, a more charitable society, a more human society in which we actually serve the common good and take care of the poor and the weak and the vulnerable. Law alone is not going to change that. We need to ask what is truly capable of changing the human heart and generating a new humanity and a new culture.