Supreme Court Affirmative Action Decision – Nonprofit Law Blog

While many of us are still thinking and learning about how the June 29, 2023 Supreme Court decision overturning affirmative action in college admissions will impact the broader nonprofit sector, here are thoughts from the majority opinion, dissents, and others regarding the two critical and, in my opinion, wrongfully and politically decided cases:

Students for Fair Admissions Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina

Held: Harvard’s and UNC’s admissions programs violate the Equal Protection Clause of the Fourteenth Amendment.

Majority Opinion (Chief Justice Roberts)

“Eliminating racial discrimination means eliminating all of it. And the Equal Protection Clause, we have accordingly held, applies “without regard to any differences of race, of color, or of nationality”—it is “universal in [its] application.””

“Outside the circumstances of these cases, our precedents have identified only two compelling interests that permit resort to race-based government action. One is remediating specific, identified instances of past discrimination that violated the Constitution or a statute. … The second is avoiding imminent and serious risks to human safety in prisons, such as a race riot.”

“[W]e 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.”

“At the same time, nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university.”

“[T]he Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.”

“[N]othing 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. … “[W]hat cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows,” and the prohibition against racial discrimination is “levelled at the thing, not the name.” A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race.”

“No military academy is a party to these cases, however, and none of the courts below addressed the propriety of race-based admissions systems in that context. This opinion also does not address the issue, in light of the potentially distinct interests that military academies may present.”

Concurring Opinion (Justice Thomas)

“Thus, in the years since Grutter, I have sought to understand exactly how racial diversity yields educational benefits.”

“The Court also correctly refuses to defer to the universities’ own assessments that the alleged benefits of race-conscious admissions programs are compelling. … The Court today makes clear that, in the future, universities wishing to discriminate based on race in admissions must articulate and justify a compelling and measurable state interest based on concrete evidence. Given the strictures set out by the Court, I highly doubt any will be able to do so.”

“Respondents and the dissents argue that the universities’ race-conscious admissions programs ought to be permitted because they accomplish positive social goals. I would have thought that history had by now taught a “greater humility” when attempting to “distinguish good from harmful uses of racial criteria.””

“We cannot now blink reality to pretend, as the dissents urge, that affirmative action should be legally permissible merely because the experts assure us that it is “good” for black students. Though I do not doubt the sincerity of my dissenting colleagues’ beliefs, experts and elites have been wrong before—and they may prove to be wrong again.”

“Even taking the desire to help on its face, what initially seems like aid may in reality be a burden, including for the very people it seeks to assist. Take, for example, the college admissions policies here. “Affirmative action” policies do nothing to increase the overall number of blacks and Hispanics able to access a college education. Rather, those racial policies simply redistribute individuals among institutions of higher learning, placing some into more competitive institutions than they otherwise would have attended. … In doing so, those policies sort at least some blacks and Hispanics into environments where they are less likely to succeed academically relative to their peers.”

“These policies may harm even those who succeed academically. I have long believed that large racial preferences in college admissions “stamp [blacks and Hispanics] with a badge of inferiority.””

“Finally, it is not even theoretically possible to “help” a certain racial group without causing harm to members of other racial groups.”

“The Court’s opinion rightly makes clear that Grutter is, for all intents and purposes, overruled. And, it sees the universities’ admissions policies for what they are: rudderless, race-based preferences designed to ensure a particular racial mix in their entering classes. Those policies fly in the face of our colorblind Constitution and our Nation’s equality ideal.”

Dissenting Opinion (Justice Sotomayor)

“The Equal Protection Clause of the Fourteenth Amendment enshrines a guarantee of racial equality. The Court long ago concluded that this guarantee can be enforced through race-conscious means in a society that is not, and has never been, colorblind. In Brown v. Board of Education, … the Court recognized the constitutional necessity of racially integrated schools in light of the harm inflicted by segregation and the “importance of education to our democratic society.” For 45 years, the Court extended Brown’s transformative legacy to the context of higher education, allowing colleges and universities to consider race in a limited way and for the limited purpose of promoting the important benefits of racial diversity. This limited use of race has helped equalize educational opportunities for all students of every race and background and has improved racial diversity on college campuses. Although progress has been slow and imperfect, race-conscious college admissions policies have advanced the Constitution’s guarantee of equality and have promoted Brown’s vision of a Nation with more inclusive schools.”

“Today, this Court stands in the way and rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits. In so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter. The Court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society.”

“If there was a Member of this Court who understood the Brown litigation, it was Justice Thurgood Marshall, who “led the litigation campaign” to dismantle segregation as a civil rights lawyer and “rejected the hollow, race-ignorant conception of equal protection” endorsed by the Court’s ruling today. … Justice Marshall joined the Bakke plurality and “applaud[ed] the judgment of the Court that a university may consider race in its admissions process.” … The Court’s recharacterization of Brown is nothing but revisionist history and an affront to the legendary life of Justice Marshall, a great jurist who was a champion of true equal opportunity, not rhetorical flourishes about colorblindness.”

“Today, the Court concludes that indifference to race is the only constitutionally permissible means to achieve racial equality in college admissions. That interpretation of the Fourteenth Amendment is not only contrary to precedent and the entire teachings of our history, … but is also grounded in the illusion that racial inequality was a problem of a different generation. Entrenched racial inequality remains a reality today. That is true for society writ large and, more specifically, for Harvard and the University of North Carolina (UNC), two institutions with a long history of racial exclusion. Ignoring race will not equalize a society that is racially unequal. What was true in the 1860s, and again in 1954, is true today: Equality requires acknowledgment of inequality.”

“In the end, when the Court speaks of a “colorblind” Constitution, it cannot really mean it, for it is faced with a body of law that recognizes that race-conscious measures are permissible under the Equal Protection Clause. Instead, what the Court actually lands on is an understanding of the Constitution that is “colorblind” sometimes, when the Court so chooses. Behind those choices lie the Court’s own value judgments about what type of interests are sufficiently compelling to justify race-conscious measures.”

“Reduced to its simplest terms, the Court’s conclusion is that an increase in the representation of racial minorities at institutions of higher learning that were historically reserved for white Americans is an unfair and repugnant outcome that offends the Equal Protection Clause. It provides a license to discriminate against white Americans, the Court says, which requires the courts and state actors to “pic[k] the right races to benefit.””

Dissenting Opinion (Justice Jackson)

“Gulf-sized race-based gaps exist with respect to the health, wealth, and well-being of American citizens. They were created in the distant past, but have indisputably been passed down to the present day through the generations. Every moment these gaps persist is a moment in which this great country falls short of actualizing one of its foundational principles—the “self-evident” truth that all of us are created equal.”

“Our country has never been colorblind. Given the lengthy history of state-sponsored race-based preferences in America, to say that anyone is now victimized if a college considers whether that legacy of discrimination has unequally advantaged its applicants fails to acknowledge the well-documented “intergenerational transmission of inequality” that still plagues our citizenry.”

“Given our history, the origin of persistent race-linked gaps should be no mystery. It has never been a deficiency of Black Americans’ desire or ability to, in Frederick Douglass’s words, “stand on [their] own legs.” Rather, it was always simply what Justice Harlan recognized 140 years ago—the persistent and pernicious denial of “what had already been done in every State of the Union for the white race.””

“Do not miss the point that ensuring a diverse student body in higher education helps everyone, not just those who, due to their race, have directly inherited distinct disadvantages with respect to their health, wealth, and well-being. Amici explain that students of every race will come to have a greater appreciation and understanding of civic virtue, democratic values, and our country’s commitment to equality.101 The larger economy benefits, too: When it comes down to the brass tacks of dollars and cents, ensuring diversity will, if permitted to work, help save hundreds of billions of dollars annually (by conservative estimates).”

“With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces “colorblindness for all” by legal fiat. But deeming race irrelevant in law does not make it so in life. And having so detached itself from this country’s actual past and present experiences, the Court has now been lured into interfering with the crucial work that UNC and other institutions of higher learning are doing to solve America’s real-world problems.”

“No one benefits from ignorance. Although formal race-linked legal barriers are gone, race still matters to the lived experiences of all Americans in innumerable ways, and today’s ruling makes things worse, not better. 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. But if that is its motivation, the majority proceeds in vain. If the colleges of this country are required to ignore a thing that matters, it will not just go away. It will take longer for racism to leave us. And, ultimately, ignoring race just makes it matter more.”

“The Court has come to rest on the bottom-line conclusion that racial diversity in higher education is only worth potentially preserving insofar as it might be needed to prepare Black Americans and other underrepresented minorities for success in the bunker, not the boardroom (a particularly awkward place to land, in light of the history the majority opts to ignore). It would be deeply unfortunate if the Equal Protection Clause actually demanded this perverse, ahistorical, and counterproductive outcome. To impose this result in that Clause’s name when it requires no such thing, and to thereby obstruct our collective progress toward the full realization of the Clause’s promise, is truly a tragedy for us all.”

Selected Comments

“President Biden declared on Thursday that the Supreme Court “is not a normal court,” delivering an extraordinarily critical assessment of another branch of government shortly after the court’s conservative majority ended nearly a half-century of affirmative action in college admissions.” NY Times

“[J]ust because Roberts’s decision is inaccurate and contradictory does not mean it will be devastating in practice. In their haste to both ignore the history of the 14th Amendment and deny the extensive legacy of racism in nearly every aspect of life (which Justices Sonia Sotomayor and Jackson traced in exquisite detail in her dissent, which was joined by Sotomayor and Justice Elena Kagan), the majority left wide open an easy workaround to their “let-them-eat-cake obliviousness.” Because “race still matters to the lived experiences of all Americans in innumerable ways,” as she put it, race will come back through the individual applications of students who have firsthand experience with that legacy.” Jennifer Rubin

“The end of affirmative action will pressure high schoolers to write about their race through formulaic and belittling narrative tropes.” The Atlantic

“The argument that white folks are falling back on about how Roberts said race can still be mentioned in a college essay is annoying me for a number of reasons. Particularly: Why should a Black student have to WASTE SPACE explaining “how racism works” to a white admissions officer … My college essay didn’t mention race, BECAUSE I HAD OTHER THINGS I WANTED TO TALK ABOUT. It is a ludicrous example of burden shifting to expect an 18-year-old kid to have to do the heavy lift of explaining how racism works and affected them personally, in this racist ass society. … I’m reminded of Toni Morrison: “The function, the very serious function of racism is distraction. It keeps you from doing your work. It keeps you explaining, over and over again, your reason for being”” Elie Mystal

“Today’s ruling will make the vital work of building inclusive college campuses much harder. Experience has shown that substituting socioeconomic status as a proxy for race will not achieve the diversity that strengthens the fabric of all universities. Educators and communities dedicated to teaching and mentoring young people and adults from every imaginable background understand how all students — not just students of color — benefit from diverse racial and socioeconomic learning environments. Decades of research show that students educated with people from different backgrounds and experiences improve their analytical thinking, creativity, communication, and collaboration. These skills are essential to building our future workforce, our military, and a healthy democracy. In the realm of health, research shows that racially and ethnically representative medical schools produce better-trained physicians and care teams that reflect the communities they serve.” Joint Statement from more than 50 foundations and charities

“The court’s decision also opens the door to numerous legal challenges of diversity programs across government, business and civil society — programs explicitly designed to mitigate what Justice Thurgood Marshall called a “legacy of discrimination” beyond the college campus. … Study after study demonstrates that, across organizations, diversity enhances critical thinking, creativity and collaboration, as well as productivity, profitability and performance. It is a national tragedy that diversity is now a contested issue rather than a common interest. And we should tell the truth about why diversity is now controversial: Opponents of diversity are opponents of any racial consciousness. They want to prevent us from understanding the ways that the past informs the present, from wrestling with the fullness and richness and complexity of our history.” Darren Walker, President of the Ford Foundation

“While there are arguments that reversing affirmative action to enact a race-blind process is more grounded in equity, we know from our work in advocating for decent, affordable housing that it is crucial to acknowledge systemic barriers and biases. Creating race-neutral policies without addressing underlying inequities and racially exclusive practices only perpetuates inequity.” Jonathan Reckford, CEO of Habitat for Humanity International

“Those who say that we are or ever have been a color-blind meritocracy are either unaware of history or lost in the depths of their cynicism. This ruling can have but one likely conclusion — fewer opportunities for students of color and more obstacles for leaders of color in our future.” Boston Foundation

“Every child in America deserves access to a quality education regardless of race, ethnicity, national origin or class. Education is not only an equalizer, but it anchors the ladder of economic opportunity. If we want to ensure that disadvantaged children, including those from minority backgrounds, can compete for spaces in higher education, we should accelerate school choice efforts and be committed to holding all kids to the same high standards.” Philanthropy Roundtable

“The decision will most likely result in declines in racial diversity among many public and private postsecondary institutions, which means that some of the most talented students of color will have to pursue a postsecondary degree elsewhere. Historically Black colleges and universities (HBCUs) can help fill this gap. HBCUs have developed talent that other institutions turn a blind eye to, and in the face of the Court’s decision, society will demand that these schools educate even more students. But for HBCUs to meet that demand, these systematically devalued institutions must receive greater investment. … With demand for HBCUs poised to jump in the wake of the Supreme Court decision, states, corporations, philanthropies, and individuals need to reprioritize investment in these institutions.” Brookings Institution