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Informed Citizens

are Better Citizens

by Michael Barbella

In June 2023, the U.S. Supreme Court issued a ruling that ended affirmative action in higher education. The Court’s decision reverses decades of legal precedent, ending a longstanding practice where colleges could consider a person’s race in the admissions process.

The term “affirmative action” was first coined in an executive order issued by President John F. Kennedy in 1961. The order referred to measures designed to achieve “non-discrimination” in employment. Eventually, affirmative action became a policy—applied in various settings—designed to eliminate unlawful discrimination among applicants. The intent was to remedy prior discrimination, as well as prevent future discrimination.

In the 1965 commencement address at Howard University, then President Lyndon Johnson said, “You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘You are free to compete with all the others,’ and still justly believe that you have been completely fair.”

Earlier decisions by the U.S. Supreme Court, known as legal precedent, permitted affirmative action in higher education. With its 1978 decision in Regents of University of California v. Bakke, the Court decided that quotas could not be used to reserve spaces for minority students; however, it upheld the constitutionality of using race as a factor in making admission decisions. In the 2003 case of Grutter v. Bollinger, the Court ruled that narrowly tailoring the use of race in admissions is constitutional “to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”

Setting aside precedent

The Court’s 2023 ruling was prompted by separate lawsuits filed against Harvard University and the University of North Carolina (UNC) by Students for Fair Admissions (SFFA), a non-profit group that seeks equity in higher education admittance. During oral arguments before the Court, the attorney for SFFA urged the Court to overturn its 2003 decision in Grutter, which justified the University of Michigan Law School’s affirmative action program. The attorney called the decision “grievously wrong” and a contradiction of the Fourteenth Amendment’s equal protection guarantee.

North Carolina Solicitor General Ryan Y. Park, who represented the University of North Carolina, said the issue is not so clear-cut. During oral arguments, Park told the Court that UNC was only following the Court’s precedent, considering race “only minimally.”

In its 40-page decision, the Court acknowledged permitting race-based college admissions programs in Bakke and Grutter but noted those initiatives were allowed under narrow restrictions. Neither Harvard’s nor UNC’s admissions programs operate under such narrow restrictions, the Court ruled. And while both schools use race-based evaluations to achieve “commendable” goals—idea exchange and leadership training, among others—those goals are too vague to truly measure, Chief Justice John G. Roberts Jr. wrote in the Court’s majority opinion.

“Many universities for too long…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,” Chief Justice Roberts wrote.

The Court determined that Harvard and UNC use race in a negative manner for admission purposes through stereotyping and deliberately avoiding minority underrepresentation. Such efforts, consequently, ensure that “race will always be relevant…and the ultimate goal of eliminating race as a criterion will never be achieved,” the Court ruled.

At issue in the Court’s ruling was its interpretation of the Fourteenth Amendment’s Equal Protection Clause, which guarantees every citizen equal protection under the nation’s laws. Such protections are lacking, according to the Court, under race-based college admissions programs and, therefore, are unconstitutional.

Solangel Maldonado, a professor at Seton Hall University Law School who teaches courses on race, ethnicity and the law, explains that with the Grutter decision the Court adopted the view that student body diversity was a permissible rationale to justify using race in university admissions under the U.S. Constitution.

“In Grutter, this was a big issue,” says Professor Maldonado. “In using the diversity rationale, the Court [in Grutter] was saying that it is important to have a diverse student body.”

Professor Maldonado notes that with the Court’s current ruling, it is “basically stepping away from that.” She also points out that with this ruling the Court made it clear that its decision applies not just to public universities but to private universities as well—something that it had never expressly said before.

Dissenting opinions

Justices Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor dissented. Justice Jackson—the Court’s first Black female justice—recused herself from the Harvard case, as she served, until last year, on the school’s Board of Overseers. She did, however, write a dissent in the UNC case.

Justice Sotomayor’s 69-page dissent accused the majority on the Court of rolling back decades of legal precedent and “momentous progress” in affirmative action. The Court’s opinion, she contended, is not based in law or fact, and contradicts the “vision of equality embodied in the Fourteenth Amendment.”

“[The Court] 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,” Justice Sotomayor wrote. “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.”

Justice Jackson addressed the notion of colorblindness in her dissent as well. “Our country has never been colorblind,” Justice Jackson wrote. “Deeming race irrelevant in law does not make it so in life.”

Justice Sotomayor addressed the Fourteenth Amendment claims in her dissent, noting that the amendment clearly does not impose a “blanket ban” on race-conscious policies, nor does it forbid governments from considering race to achieve equality. She cited the Freedmen’s Bureau Act of 1865 as an example, reminding her fellow justices that the agency provided essential funding for Black education during Reconstruction as the Bureau believed that education “was the foundation upon which all efforts to assist the freedmen rested.” In fact, it was through this act, that many Historically Black Colleges and Universities (HBCUs) were established, including Howard University, Morehouse College and Hampton University, to name a few.

Professor Maldonado explains that the Fourteenth Amendment was part of the Reconstruction Amendments, along with the Thirteenth and Fifteenth Amendments, passed after the Civil War to protect the formerly enslaved from discrimination.

“The whole point of these amendments was to guarantee equal treatment for African Americans. Justice Sotomayor looked at the history and pointed out that Congress was trying to make things right,” Professor Maldonado explains. “If you look at the history and look at the amendment’s original intent, then you see that race-conscious policies were always intended as part of the Fourteenth Amendment. You cannot look at the Fourteenth Amendment without looking at its historical context.”

“No End in Sight”

Besides clashing over constitutional interpretations, the Court also was divided about an “end point” for affirmative action. The Court’s majority stated that both Harvard and UNC lack a logical end date for their respective race-based admissions programs as suggested by Grutter.

In Grutter, the late Justice Sandra Day O’Connor wrote for the majority that “25 years from now the use of racial preferences will no longer be necessary.”

Writing for the majority of the Court, Chief Justice Roberts states, “Twenty years later, no end is in sight.”

Justice Jackson wrote in her dissent, “Equality is an ongoing project in a society where racial inequality persists. A temporal requirement that rests on the fantasy that racial inequality will end at a predictable hour is illogical and unworkable.”

Not totally dismissed

Despite its reversal on affirmative action policies for college admission, the Court did not totally dismiss race as a factor for applicants. Chief Justice Roberts said prospective students can still discuss race in the essays that accompany their applications but warned that “universities may not simply establish through application essays or other means the regime we hold unlawful today.”

Chief Justice Roberts went on to say in the opinion, “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 experience as an individual—not on the basis of race.”

According to Professor Maldonado, “The Court is saying you can’t just check the box anymore, but it’s not saying that someone cannot talk about their racial identity in their [college] application. A student can discuss how their racial experiences and background has allowed them to bring their unique perspective or skills to a college campus.”

According to a January 2024 New York Times article, the Court’s ruling has caused many college students to rethink what they write in their college essays, putting an emphasis on their racial identity.

Discussion Questions

  1. The Court ruled that college applicants can still discuss race in their admission essays. Is that approach enough to create a diverse student body? Explain your answer.
  2. Do you think being exposed to people from backgrounds different than your own is beneficial? Why or why not?
  3. Read the sidebar Legacy Admissions Coming Under Fire. If affirmative action is ending, should legacy admissions also end? Explain your answer.

Glossary Words
concurring opinion
— a separate opinion delivered by one or more justices or judges that agrees with the decision of the court but not for the same reasons.
majority opinion — a statement written by a judge or justice that reflects the opinion reached by the majority of his or her colleagues
nonpartisan — not adhering to any established political group or party.
pluralistic — relating to a system of thought that recognizes more than one ultimate principle.
precedent — a legal case that will serve as a model for any future case dealing with the same issues.
regime— a system or planned way of doing things.
reverse — to void or change a decision by a lower court.

BONUS CONTENT: Legacy Admissions Coming Under Fire

Since the U.S. Supreme Court issued its ruling ending affirmative action, legacy admissions have also come under fire. Legacy college admissions give an advantage to applicants who have a family connection to an alumni from that college or university.

In a speech after the Court announced its affirmative action ruling, President Joseph Biden directed the U.S. Education Department to study “practices like legacy admissions and other systems that expand privilege instead of opportunity.” A 2022 Pew Research Center survey found that 75% of those surveyed think legacy should not be a factor in college admissions.

“The public was always opposed,” Richard Kahlenberg, of Georgetown University’s McCourt School of Public Policy who edited the book Affirmative Action for the Rich: Legacy Preferences in College Admissions, told The Hill. “They always thought it was offensive that ancestry should matter in who gets into a selective college.”

Opportunity Insights, a nonpartisan research and policy institute, funded in part by the Bill and Melinda Gates Foundation, released a study of admissions data in August 2023. The study analyzed the 100 highest ranked colleges and universities and found that 78% of private institutions gave at least some consideration to legacy compared to 15% of public institutions. In addition, the study found that a legacy applicant, especially from a wealthy family, was five times more likely than another student with the same SAT score to gain admission to an Ivy League institution.

Investigation launched

In July 2023, the U.S. Education Department’s Office of Civil Rights opened an investigation into Harvard University’s legacy admissions policy. The investigation was prompted by a complaint filed by the Chica Project, the African Community Economic Development of New England, and the Greater Boston Latino Network. The complaint claims that Harvard’s policy gives an unfair advantage to the children of wealthy donors and alumni.

“Let’s be clear—legacy and donor admissions have long served to perpetuate an inherently racist college admissions process,” Derrick Johnson, the president of the NAACP told The New York Times. “Every talented and qualified student deserves an opportunity to attend the college of their choice. Affirmative action existed to support that notion. Legacy admissions exist to undermine it.”

While Justice Neil Gorsuch sided with the majority in ending affirmative action, he wrote a concurring opinion in the Harvard case where he addressed legacy admissions.

“Its [Harvard’s] preferences for the children of donors, alumni, and faculty are no help to applicants who cannot boast of their parents’ good fortune or trips to the alumni tent all their lives,” Justice Gorsuch wrote. “While race-neutral on their face, too, these preferences undoubtedly benefit white and wealthy applicants the most.”

According to Education Reform Now, a nonprofit organization that works for educational reform, more than 100 colleges and universities have ended their legacy admission policies since 2015. Wesleyan University, Occidental College, as well as the University of Minnesota, are the most recent educational institutions to eliminate legacy admissions. —Jodi L. Miller

This article originally appeared in the winter 2024 issue of Respect, NJSBF’s diversity & inclusion newsletter.