On June 29, the Supreme Court of the United States decided Students for Fair Admissions v. Harvard, a consolidated case in which the Court considered the race-conscious admissions practices of Harvard College and the University of North Carolina. In a 6-3 majority opinion, the Court held the consideration of race in admissions to colleges and universities unconstitutional, striking down a practice institutions of higher education have employed for almost fifty years. The decision is a watershed, with immediate implications for the ivory tower and, likely, for race-conscious initiatives elsewhere.
Any summary of a decision as lengthy as this one—comprising 237 printed pages spread across six separate written opinions—is at best the SparkNotes version in the truest sense of the term. With that caveat in mind, the takeaways are as follows. Chief Justice John Roberts wrote the majority opinion, joined by Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. A key (indeed, the first) focus of the majority opinion was an analysis of the Equal Protection Clause of the Constitution, concluding the provision was and remains colorblind. In his concurrence, Justice Thomas reinforced the majority’s interpretation, engaging in a full-throated originalist analysis of the Fourteenth Amendment. This view of the Equal Protection Clause is the source of a major schism within the Court. Writing in dissent, and joined by Justices Kagan and Jackson, Justice Sotomayor offered an alternative argument (also framed in originalist terms) that the Equal Protection Clause is expressly race-conscious and permits race-conscious efforts to effect equality.
Proceeding to the precedent established in Regents of University of California v. Bakke and Grutter v. Bollinger, the Court explained race-based admissions programs at all times constituted an uncomfortable and narrow exception to the colorblind Constitution. Critical to this exception was that such programs satisfy strict scrutiny and have a concrete and definable endpoint. Grutter’s reference to a 25-year deadline was essential to the majority’s holding, the Court explained, a point Justice Kavanaugh reiterated in his separate concurrence. In holding race-based admissions practices unconstitutional under the Equal Protection Clause, the majority found 1) none of the educational benefits of diversity the universities identified were sufficiently concrete or assessable to satisfy strict scrutiny, 2) the universities failed to demonstrate how admissions decisions based on race furthered any educational interests, 3) the universities’ practice of treating race as a “plus” factor in admissions both harmed some applicants solely based on their race and engaged in impermissible racial stereotyping, and 4) neither institution articulated any logical or constitutionally permissible endpoint to their admissions program. Justices Sotomayor and Jackson disagreed, writing in dissent of the country’s history of racism and segregation, persistent racial inequalities, and the need to continue race-conscious admissions practices to rectify them. Writing separately, Justice Gorsuch both argued that Title VI constituted an independent basis to strike down the institutions’ admissions practices and urged the Court to disaggregate the Title VI and the Equal Protection Clause analyses.
Two aspects of the Court’s opinion are of particular note as matters of going concern. First, the Court expressly excluded military academies from its holding, citing the “potentially distinct interests” they may present. For now, the service academies may continue race-based admissions practices, but the constitutionality of those practices will almost assuredly come before the Court in short order. Second, the Court noted its decision did not preclude universities from considering an applicant’s discussion of how race impacted his or her life, so long as such consideration is restricted to the applicant’s experience as an individual. Justice Sotomayor latched onto this caveat in her dissent as a potential tool for universities to continue their diversification efforts. This observation earned a pointed rebuke from Chief Justice Roberts, who reiterated the Constitution prohibited universities from doing indirectly what they are forbidden from doing directly. Chief Justice Roberts cautioned universities that “a dissenting opinion is generally not the best source of legal advice on how to comply with the majority opinion.” The appropriate consideration of race in applicants’ personal statements may be a source of future litigation as universities try to navigate the new legal landscape.
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