Harvard, North Carolina’s Consideration of Race in Admissions Violates the Constitution, Supreme Court Rules

This article has been updated. The Supreme Court’s ruling that the admissions processes at both Harvard and the University of North Carolina violate the 14th Amendment’s Equal Protection Clause signals a revolution in American higher education that will force bastions of learning from coast to coast to reassess how they do business.While the decision is not everything that critics of race-based affirmative action would have wanted — it did not ban such consideration outright — it is nonetheless a stern rebuke for Harvard and North Carolina and a vindication for Students for Fair Admissions, which brought the cases and weathered lower court defeats to find high court vindication.President Biden, speaking sharply from the Roosevelt Room at the White House, “Discrimination still exists in America. Discrimination still exists in America. Today’s decision does not change that. It’s a simple fact.” When asked by a reporter if he felt the Supreme Court was “rogue” one he responded “This is not a normal court.”The 6-to-3 decision, authored by Chief Justice Roberts, amounts to a stinging rebuke to America’s oldest university, Harvard, and one of its flagship public ones, North Carolina. While the court did not explicitly overrule its affirmative action precedents, its holding that the schools acted crosswise with the Constitution is an earthquake in the field of race and merit.Chief Justice Roberts explains that in the wake of the Civil War the court “embraced the transcendent aims of the Equal Protection Clause.” Soon, though, the court and the country “failed to live up to the Clause’s core commitments” and “state mandated segregation was in many parts of the Nation a regrettable norm.”Still, the chief notes, the principle that “eliminating racial discrimination means eliminating all of it” endured, and must be applied to the question of whether a “university may make admissions decisions that turn on an applicant’s race.” The court’s precedents — fractured, ambivalent holdings that sought to find an increasingly elusive consensus — allowed race to be considered, but it “had to be cabined.” That regime has now suffered a body blow. One of those precedents, Grutter v. Bollinger, from 2003, sought not only to curtail the use of race in admissions, but also to sunset it. The majority respected “that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” The chief now laments that 20 years later, “no end is in sight.”In order for an admissions policy to pass constitutional muster, Chief Justice Roberts writes, it must “comply with strict scrutiny, they may never use race as a stereotype or negative, and—at some point—they must end.” Both Harvard and North Carolina fail this test, and their admissions schemes “must therefore be invalidated” under the 14th Amendment. The chief finds that both schools “fail to articulate a meaningful connection between the means they employ and the goals they pursue,” a necessity when race is part of the mix. He reflects: “How many fewer leaders Harvard would create without racial preferences, or how much poorer the education at Harvard would be, are inquiries no court could resolve.”The majority accuses the schools of deploying “opaque racial categories” — in a concurrence, Justice Neil Gorsuch calls them “incoherent” and “irrational” — that are alternatively “imprecise,” “overbroad,” and “underinclusive.” Unsatisfactorily, the “universities’ main response to these criticisms is, essentially, ‘trust us.’” The majority declined that invitation.Chief Justice Roberts, along with five of his fellow justices, decry what they see as the consensus among American universities that the “touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. The court maintains, though, that our constitutional history does not tolerate that choice.”Justice Clarence Thomas, while concurring in the judgment — unusually, he read his piece aloud from the bench — would have gone further. He writes separately to “offer an originalist defense of the colorblind Constitution” and to “clarify that all forms of discrimination based on race—including so-called affirmative action—are prohibited under the Constitution.” He would have Grutter share Roe v. Wade’s fate as a dead letter. Justice Thomas notes that “as anyone who has labored over an algebra textbook has undoubtedly discovered, academic advancement results from hard work and practice, not mere declaration.” He observes that “far from advancing the cause of improved race relations in our Nation, affirmative action highlights our racial differences with pernicious effect.” In dissent, Justice Sotomayor wrote that the court’s decision “cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter” and reckoned that it “subverts the constitutional guarantee of equal protection.” She maintains that the court’s opinion is “not grounded in law or fact and contravenes the vision of equality embodied in the Fourteenth Amendment.”Justice Ketanji Brown Jackson, who recused herself from the Harvard case because of her involvement with the university, nevertheless also issued a stinging dissent to the consolidated cases. She writes that “Gulf-sized race-based gaps exist with respect to the health, wealth, and well-being of American citizens” and that “race still matters to the lived experiences of all Americans in innumerable ways, and today’s ruling makes things worse, not better.”Justice Jackson laments that the “best that can be said of the majority’s perspective is that it proceeds (ostrich-like) from the hope that preventing consideration of race will end racism.” Justice Thomas, though, notes his opposition to her “race-infused world view,” which he finds “falls flat at every step.”

Harvard, North Carolina’s Consideration of Race in Admissions Violates the Constitution, Supreme Court Rules

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