“Many universities have for too long wrongly concluded that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned, but the color of their skin. This Nation’s constitutional history does not tolerate that choice.”
So said, not Professor John McWhorter, author of the book Woke Racism, but the Chief Justice of the Supreme Court of the United States of America, John Roberts, in the majority reasons in Students for Fair Admissions v. President and Fellows of Harvard College, handed down on June 29, 2023.
This decision upheld a challenge to the constitutionality and legality of university admissions procedures that took into account the race of applicants – typically termed “racial preferences in student admissions” or “race-conscious admissions”. It would be difficult to underestimate its importance, since the decision aims to reframe, if not the constitutional right to equality – a “sovereign virtue”, according to the jurist-philosopher Ronald Dworkin, who approved of race-based admissions practices – then at least the way in which this right is discussed. This is especially so given that the decision pertains to American constitutional law, which is certainly not wanting in doctrinal depth or without broader influence.
For some, including Chief Justice Roberts, the author of the majority reasons, as well as Justice Kavanaugh, who signed concurring reasons, this decision served merely as a reminder of foundational principles. For others, including Justice Thomas, who also concurred, it was a long-awaited reversal. For still others, such as the dissenting Justices Sotomayor and Jackson, it apparently came as a shock. In this respect, it was probably Justice Gorsuch who spoke most truthfully, when he referred to the June 29, 2023 decision as the end of an untenable exception, and thus as a corrective.
As is typical of the media coverage of the case, some members of the Court used the expression “affirmative action” to describe the admissions practices at issue. This phrase is typically translated into Canadian law through the expression “ameliorative program” (in French: “programme d’accès à l’égalité”), but might also be referred to as “positive discrimination” or “reverse discrimination”. Yet, if the Court’s jurisprudence had until this decision tolerated these admission procedures only under certain circumstances, it was not on the basis that they constituted anti-discrimination policies (and thus truly amounted to “affirmative action”), but on the basis that they were a means of pursuing the putative educational benefit of universities having a diverse student body.
One should therefore be sceptical of the received reading of the June 29, 2023 decision, according to which the Supreme Court, by finding these practices discriminatory, in accordance with the Equal Protection Clause of the Fourteenth Amendment of the American Constitution and Title VI of the Civil Rights Act of 1964, announced the definitive end of affirmative action practices in university admissions. For, it bears repeating that the Court had never allowed race to be taken into account in processing university applications as a means to combat “societal” or “systemic” discrimination in the first place. Rather, it had only admitted such practices as a means, temporary in nature, of pursuing this so-called educational objective – in other words, to encourage diversity that was not of racial groups, but of individuals whose personal “racial” experiences could only be relevant as one factor among others.
In short, the Students for Fair Admissions decision revealed what we already knew: the actual practice of “race-sensitive” admissions by American universities was at odds with the sole purpose it was authorized to pursue, namely the pursuit of a truly diverse student body (R. Fullinwider, 2018). The decision then confirmed, by implication, that this practice failed to meet the other conditions of its legality and constitutionality. These conditions were arranged into three categories by Chief Justice Roberts.
The Decision
First, the admission procedures in question were found to have ill-defined “educational” objectives, which they only dubiously advanced. This made it possible to reject them as unconstitutional on the basis of what American law terms the “strict scrutiny” criterion. This “strict scrutiny” criterion is the most stringent that American law recognizes, which applies, among other things, to legal distinctions in treatment based on race. It takes the form of a double requirement, namely, a compelling governmental interest, and the pursuit of that interest by means narrowly tailored.
Second, the admissions procedures at issue also failed to satisfy another twofold requirement, which was to take no account of the race of the candidates in a way that was either disadvantageous to non-beneficiaries, or having the effect of stereotyping their beneficiaries. On the contrary, these procedures were revealed to have systematically reduced the admissions of white and Asian students, in a way that effectively reproduced the effects of imposing quotas. The procedures also simultaneously served to stereotype “black” and “Hispanic” students by dissolving their individuality within bureaucratic and arbitrary racial categories, as though all candidates in these categories thought identically.
Third, by taking into account the race of candidates for the purpose of systematically maintaining group representation, rather than as a potential factor of individual contribution to the diversity of the student body, the admissions procedures and practices of Harvard and North Carolina universities proved to be devoid of any end date that could correspond to the eventual attainment of their objectives. Case law was unequivocal in this regard: taking into account the race of university applicants was permitted only as a temporary measure. Taking into account the race of applicants was to be a means to the objective of a diverse student body, which objective was in any event irreducible to race alone and instead had to rooted in a global and comparative evaluation of individual experiences and potentials. It was not meant to be an end unto itself.
The Stare Decisis Issue
Chief Justice Roberts’ reasons do not present themselves as a jurisprudential reversal. On the contrary, Justice Roberts is astonished that his dissenting colleagues claim the banner of stare decisis, which is to say the banner of the binding force of precedent. The dissenters, however, do not pass up the opportunity to point out that even Justice Thomas, the signatory of particularly heartfelt concurring reasons, acknowledged that the Court’s majority decision had overturned the principle the Court had established in Grutter v. Bollinger in 2003.
Admittedly, the decision confirmed – following twenty-five years of uncertainty that had arisen from the apportionment of reasons in Regents of the of the University of California v. Bakke in 1978 – that the “educational benefits of having a diverse student body” was an overriding public interest within the requirements of strict scrutiny. To the extent that the Court can be seen to have withdrawn from the universities an authorization given to them by Grutter v. Bollinger, then this is because further investigation of such alleged educational benefits allowed the Court to conclude that their pursuit in this case had animated practices that could not be justified under the strict scrutiny standard. In doing so, the Court noted that it was confusing, and rather tautological, that Harvard University and the University of North Carolina had tried to circumscribe and enumerate these supposedly valuable educational benefits in such terms as “training future leaders in the public and private sectors”, “adapt[ing] to an increasingly pluralistic society”, “better educating its students through diversity”, “producing new knowledge stemming from diverse outlooks”, “promoting the robust exchange of ideas”, “broadening and refining understanding”, “fostering innovation and problem-solving”, “preparing engaged and productive citizens and leaders” and “enhancing appreciation, respect, and empathy, cross-racial understanding, and breaking down stereotypes.”
What is certain is that the Grutter ruling of 2003 – of which it is possible to see a rigorous application of the principle in this case – was much more than the recognition of the diversity of the student body as a possible compelling interest.
Ruling as Predicted
In any event, the claimed “surprise” at the June 29, 2023 ruling could only be feigned. It was notwithstanding the 2003 Grutter ruling that, the following year, Professor Richard Primus was able to write that there was “no consensus about the normative status of affirmative action” in the United States (R. Primus, 2004, p. 1038; the term was there understood broadly, so as to cover even “racial preferences” in university admissions aimed at achieving the educational benefits of diversity). Moreover, no one who had taken serious interest in the subject was blind to the gap that could separate actual university practice from the putative quest for diversity irreducible to the putative belonging of individuals to arbitrary, bureaucratic racial categories (R. Fullinwider, 2018).
Moreover, as Justice Gorsuch pointed out in his concurring reasons, the boundary between what is permitted and what is prohibited was difficult to discern, to the point that, despite a ruling such as the Court’s 2016 decision in Fisher v. University of Texas, the margin left to racial preferences in university admissions remained extremely thin. And, as Justice Kavanaugh insisted in his concurring reasons, even if the end date for the admissibility of race-based practices evoked in the 2003 Grutter decision was twenty-five years, it had to be clear to all that the exceptional tolerance of such academic practices was only temporary.
Even Jeannie Suk Gersen, a Harvard Law School professor claiming to defend affirmative action and racial preferences in the admissions process, confided to the Chronicle of Higher Education that she was disappointed but not surprised by the June 29 ruling; or rather surprised at the opposite – i.e., that the Supreme Court’s tolerance of such practices had lasted so long (E. Goldstein and L. Gutkin, 2023, p. 40-41). As Gerald Early, professor of African and African-American Studies at Washington University in Saint Louis, put it: “[W]e all knew that this largess was not going to last. There was an expiration date to affirmative action. Everyone said so: jurists, civil-rights leaders, politicians, and folks on the street.” (G. Early, 2023, p. 34-35).
Ending a Temporary Exception
As Judge Gorsuch pointed out, the jurisprudential license that was given to universities to take into account the race of applicants was an exception. Justice Kavanaugh, for his part, insisted upon the temporary nature of these measures. In other words, these practices, to which the Court has now put an end, were never admitted as full-fledged “affirmative action” measures to combat “societal” or “systemic” discrimination.
Indeed, American case law relating to the Equal Protection Clause and the Civil Rights Act does not reserve protection against discrimination to “victimized” groups, but rather extends it to all individuals. It therefore does not permit combatting discrimination against some by discriminating against others (City of Richmond v. J. A. Croson Company, 1989). At one point, federal affirmative action programs enjoyed exceptional tolerance (Metro Broadcasting, Inc. v. Federal Communications Commission, 1990), but the parenthesis was quickly closed (Adarand Constructors, Inc. v. Peña, 1995).
In short, if caselaw still authorizes “affirmative action”, it is only as a means of redress; that is, as a remedy, either judicial or legislative in nature (Fullilove v. Klutznick, 1980), that responds to precisely established legal discrimination, not the generally-supposed “societal” or “systemic” discrimination. The other exception to remain, following the Students for Fair Admissions decision, is the overriding public interest in safety in detention centers. This exception permits different treatment on the basis of race notwithstanding the Equal Protection Clause, but only to the to the extent strictly necessary(Johnson v. California, 2005). In Students for Fair Admissions, Chief Justice Roberts was quick to point out that:
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.
The Aftermath
Before the Supreme Court heard the Students for Fair Admissions case, ten states had already prohibited affirmative action based on race, national origin or sex, whether through their constitutions following a referendum, by law or by decree. They had done so, not only in terms of admission to public universities, but also in relation to employment and public contracts. These included California (1996), Washington State (1998, ban lifted in 2022), Florida (1999), Michigan (2006), Nebraska (2008), Arizona (2010), New Hampshire (2012), Oklahoma (2012) and Idaho (2020). In the 2014 decision Schuette v. Coalition to Defend Affirmative Action, the Supreme Court had for that matter found that the Michigan Constitution’s ban on racial preference in the admission of students to Michigan’s public public universities was compliant with the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.
A poll conducted by The Economist and YouGov concluded that while only 44% of black persons agreed with the Supreme Court’s decision against Harvard University and North Carolina State University, even fewer, 36%, said they disagreed with it. This is because, as Gerald Early has noted:
Black Americans have had ambivalent feelings about affirmative action since its inception in the 1960s. Though the extent and implications of the policy have changed radically over time, it has never benefited more than a small minority of Black people. Yet its symbolic importance has been enormous, especially in how it has affected the culture of higher education (G. Early, 2023, p. 35).
The judicially proclaimed end of “racial admissions” of course makes it even harder to justify, morally and legally, the continued practice of “legacy admissions”, which are those admissions that some universities reserve for the children of their graduates and donors. In Students for Fair Admissions, Justice Gorsuch did not fail to note the ironic contradiction between the egalitarian pretensions of the major American universities, who devote themselves to racial preferences in their admissions, and the fact that these institutions admit virtually no students from less financially well-off backgrounds. It is because of this contradiction that, three weeks after the Court handed down its judgment, Wesleyan University abolished its legacy admissions. “It’s good to remove hypocrisy whenever you can”, its president, Michael Roth, candidly declared (N. Gluckman, 2023, p. 29).
As for taking the race of university applicants into account, it is now still possible, but only in such a way that is compatible with a genuinely individualized and comparative evaluation of all applicants. But no one should be fooled into thinking that this possibility provides a way of legitimizing existing policies, especially since Chief Justice Roberts was careful to warn university administrators against the temptation to hide their preferences for “races”, rather than for candidates, in the requirement and evaluation of an “application essay”.
Maxime St-Hilaire is a Full Professor at the Faculty of Law, Université de Sherbrooke. This article was originally published in French in Le Droit. It was translated by Stéphane Sérafin.
REFERENCES
Students for Fair Admissions v. President and Fellows of Harvard College (2023), 600 U.S. 181.
Fisher v. University of Texas (2016), 579 U.S. 365.
Gratz v. Bollinger (2003), 539 U.S. 244.
Grutter v. Bollinger, (2003) 539 U.S. 306
Regents of University of California v. Bakke (1978), 438 U.S. 265.
Schuette v. Coalition to Defend Affirmative Action (2014), 572 U.S. 291.
Johnson v. California (2005), 545 U.S. 162.
Metro Broadcasting, Inc. v. Federal Communications Commission (1990), 497 U.S. 547.
Adarand Constructors, Inc. v. Peña (1995), 515 U.S. 200.
City of Richmond v. J. A. Croson Company (1989), 488 U.S. 469.
Fullilove v. Klutznick (1980), 448 U.S. 448.
Ronald Dworkin, Sovereign Virtue: The Theory and Practice of Equality (Harvard University Press, 2000).
Gerald Early, “Black Americans Have Always Had Mixed Feelings About Affirmative Action” in “The End of Race-Conscious Admissions: Is Student Diversity Still Possible?” (2023) The Chronicle of Higher Education 33-38.
Robert Fullinwider, “Affirmative Action” in dans Edward N. Zalta, ed., Stanford Encyclopedia of Philosophy (2018), online: <https://plato.stanford.edu/entries/affirmative-action/#Aca>
Nell Gluckman, “For One College, Dropping Legacy Admissions Is Good PR – Among Other Things” in “The End of Race-Conscious Admissions: Is Student Diversity Still Possible?” (2023) The Chronicle of Higher Education 28-31.
E Goldstein and L Gutkin, “Did Colleges Discriminate Against Asians? The Court Didn’t Say: The Harvard Professor Jeannie Suk Gersen on the affimative-action decision” in “The End of Race-Conscious Admissions: Is Student Diversity Still Possible?” (2023) The Chronicle of Higher Education 39-46.
John McWorther, Woke Racism: How a New Religion Has Betrayed Black America (Portfolio, 2021).
Richard Primus, “Bolling Alone” (2004) 104 Columbia Law Review 975-1041.
The Economist/YouGov Poll, July 1-5, 2023, 1500 U.S. Adult Citizens, online: <https://docs.cdn.yougov.com/kpnwbn3sup/econTabReport.pdf#page46>.
