Students for Fair Admissions, Inc. v. President and Fellows of Harvard College

The Supreme Court handed down another historic case that will be read in law school for years to come. The total of the opinions is 237 pages. I’m not going to summarize them, but it’s important to know that the court, in an opinion written by CHIEF JUSTICE ROBERTS, struck down race-based college admissions as violative of the Equal Protection Clause of the Fourteenth Amendment. His lengthy opinion concludes:

Both [university] 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. We have never permitted admissions programs to work in that way, and we will not do so today. At the same time, as all parties agree, 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. A dissenting opinion is generally not the best source of legal advice on how to comply with the majority opinion. What 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. Many universities have for too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice.

JUSTICE THOMAS CONCURRED SPECIALLY. JUSTICE GORSUCH CONCURRED SPECIALLY, AND HE WAS JOINED BY JUSTICE THOMAS. He wrote on why Title VI of the Civil Rights Act of 1964 also should be construed to forbid race or diversity from being considered in college admissions. JUSTICE KAVANAUGH CONCURRED SPECIALLY, trying to argue that race-based university admissions was always something that case law stated would only be tolerated for long enough to set things on a path to equality, and he figures it’s been long enough.

JUSTICE SOTOMAYOR DISSENTED and was JOINED BY JUSTICE KAGAN AND JUSTICE JACKSON. The dissent can be boiled down to the view that the requirement of racial equality cannot be achieved by being “colorblind.” Instead, the law can be used to advance previously disadvantaged races to a position of equality by doing equity.

JUSTICE JACKSON DISSENTED (and was also JOINED BY JUSTICES KAGAN AND SOTOMAYOR) to point out that “[g]ulf-sized race-based gaps exist with respect to the health, wealth, and well-being of American citizens” based on race. Near the end of her dissent, she writes:

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 racelinked 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 only way out of this morass—for all of us—is to stare at racial disparity unblinkingly, and then do what evidence and experts tell us is required to level the playing field and march forward together, collectively striving to achieve true equality for all Americans. It is no small irony that the judgment the majority hands down today will forestall the end of race-based disparities in this country, making the colorblind world the majority wistfully touts much more difficult to accomplish.