July 3, 2023
Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 20-1199, 600 U.S. ___, 2023 WL 4239254 (June 29, 2023) (Roberts, C.J.) [Decided with Students for Fair Admissions, Inc. v. University of North Carolina, No. 21-707]
Response by Richard J. Pierce, Jr.
Geo. Wash. L. Rev. On the Docket (Oct. Term 2022)
Slip Opinion | SCOTUSblog: Harvard / University of North Carolina
Students for Fair Admissions v. Harvard College and Students for Fair Admissions v. University of North Carolina: Affirmative Action Is Unconstitutional in Both Public and Private Schools
These companion cases have four closely related holdings: Racial preferences in admission to state colleges violate the Constitution; racial preferences in admission to private colleges violate the Civil Rights Act of 1964;1 the admissions process at the University of North Carolina (“UNC”) violates both the Constitution and the Civil Rights Act by discriminating against Asian applicants; and the admissions process at Harvard College violates the Civil Rights Act by discriminating against Asian applicants.2
The holdings were easy to predict. They were foreshadowed by the splintered opinions in University of California v. Bakke3 and Grutter v. Bollinger.4 In both cases, four Justices expressed the view that racial preferences of all types are illegal in college admissions. A six-Justice majority turned that into a holding in the Harvard/UNC cases.
The majority in Bakke and Grutter held that some types of racial preferences were legally permissible, but in both cases the majority severely limited the role that racial preferences can play and held that they were lawful only because they had the potential to further one limited goal—the creation of a student body that reflects a diversity of views.5 The Court explicitly rejected the justifications for racial preferences that most supporters of affirmative action embrace.6 The majority rejected the arguments that racial preferences can be justified by a desire to reduce the historic deficit of minorities in various professions, to remedy societal discrimination against minorities, or to improve the quality and quantity of the services provided to underserved communities.7
The majority also made it clear that the deference that they were conferring on colleges to use racial preferences to improve the diversity of views in classrooms was limited, contingent, and temporary. In Grutter, the majority emphasized the limited nature, magnitude, and effect of the racial preferences that colleges could use, the need for colleges to rely primarily on other means of assuring that they obtained a diversity of views, and the temporary nature of the deference the Court was extending to colleges to use racial preferences as one of their many tools to obtain a diversity of views in classrooms.8 Two passages from the majority opinion in Grutter illustrate the contingent and temporary nature of the Court’s tolerance for racial preferences in admissions:
We acknowledge that “there are serious problems of justice connected with the idea of preference itself.” Narrow tailoring, therefore, requires that a race-conscious admissions program not unduly harm members of any racial group. Even remedial race-based governmental action generally “remains subject to continuing oversight to assure that it will work the least harm possible to other innocent persons competing for the benefit.” To be narrowly tailored, a race-conscious admissions program must not “unduly burden individuals who are not members of the favored racial and ethnic groups.”9
* * *
[R]acial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands. Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle. We see no reason to exempt race-conscious programs from the requirement that all government use of race must have a logical end point.10
The factors the Grutter majority emphasized in these passages played important roles in the Court’s reasoning in the Harvard/UNC cases. The majority opinion and the three concurring opinions are laced with references to the reluctant, contingent, and temporally limited nature of the Court’s prior acquiescence in some uses of race in college admissions.11
The majority opinion in the Harvard/UNC cases will have many effects. Those effects can be described in three categories: political effects, effects beyond the role of race in college admissions, and effects on the admissions process.
Political Effects
When the Court overruled Roe v. Wade in 2022,12 it triggered a powerful backlash of two types. The Court’s approval rating fell to its lowest level in history,13 and the Democrats got an issue that they turned into several unexpected electoral victories.14 The Court’s decision to overrule Bakke will not trigger a similar backlash. It will elicit more cheers than jeers.
A large majority of the public supported Roe,15 while a large majority disliked Bakke. Sixty-nine percent of Americans think that private universities should not be allowed to consider race in making admissions decisions, while seventy-four percent think that public universities should not be allowed to consider race in making admissions decisions.16 Voters in California have repeatedly rejected affirmative action by large margins.17 The Court’s decision in the Harvard/UNC cases will be controversial, but it will not hurt the Court’s reputation or help Democrats.
Effects Beyond the Role of Race in College Admissions
The Court’s decisions will have ripple effects in many other contexts. Any decision to prefer minorities in any context is likely to be held to be both unconstitutional and a violation of the Civil Rights Act. Even before the Court decided the Harvard/UNC cases, courts held that many legislative and regulatory regimes that favor minorities are illegal.18
The decision is likely to have the same effect on any legislative or regulatory program that includes a preference for women. The Court applies a slightly more tolerant test in the context of gender discrimination than it does in the context of racial discrimination,19 but the total intolerance for discrimination based on race that is apparent in the Court’s opinion in the Harvard/UNC cases almost certainly will translate into near-total intolerance for discrimination based on gender.
It will be interesting to see whether the Harvard/UNC opinions will have any effect on legislative and regulatory regimes that favor Native Americans. The Court’s recent opinion upholding the many preferences for Native American contained in the Indian Child Welfare Act suggests that the Court is likely to continue to recognize Native Americans as uniquely deserving of preferences in many contexts.20
Effects on College Admissions
Presidents, Deans, and Admissions Directors at universities with selective admissions systems have been expecting the Court’s decision abolishing affirmative action for years.21 They will analyze every word of the Court’s opinion in their efforts to come as close to retaining their prior system of admissions as possible while remaining consistent with the Court’s opinion.
Their concern about the effect of the opinion is easy to understand. On average, Black applicants do not perform as well as white or Asian applicants on the standardized tests that selective universities have long used as an important admissions criterion.22 If universities just retain the systems of admission that they used in the past and eliminate all racial preferences, most will experience a large reduction in the proportion of Black applicants that they admit and enroll. That is what happened in state universities in California in the wake of the plebiscite in which voters banned the use of racial preferences in admissions.23
Administrators at selective schools will search for clues in the opinions that provide some basis for predicting what they can and cannot do in their efforts to retain the level of racial diversity that they want. The clues can take at least two forms.
First, they will look for evidence that the Court will tolerate changes in admissions criteria that are not based on race but that have the effect of allowing them to admit Black applicants that would not otherwise satisfy their admissions criteria. There are two promising criteria that some selective universities have already adopted: Preferences based on socioeconomic status and preferences based on lack of a family history of higher education.24 Both categories include a disproportionate number of Black applicants,25 so adoption of either is likely to increase the number of Black applicants a school can admit. The search for clues in the opinion will bear fruit.
The opinion includes many clues that suggest that the Court will allow selective universities to use criteria of that type. For instance, the majority opinion concludes by emphasizing the difference between impermissible consideration of race and permissible consideration of an individual applicant’s “courage and determination” evidenced by their success in overcoming racial discrimination.26 That passage actually suggests that schools can continue to use one type of affirmative action by assigning plus points to applicants who write a persuasive essay in which they describe the ways in which they have overcome obstacles to success such as racism. The concurring opinions explicitly recognize that universities can consider financial means and other evidence that an applicant has a disadvantaged background.27 The dissenting Justices emphasize the majority’s decision to leave intact admissions systems that consider race neutral criteria like socioeconomic status and family educational history.28
There are also clues in the form of statements that the Court did not make. The evidentiary record in the Harvard case identifies at least two ways in which Harvard’s admissions system has disadvantaged Asian applicants without conferring a preference on Black applicants. The members of the admissions committee consider an applicant’s “personal factors” in their decisionmaking process, and the committee awards Asian applicants lower personal factor scores on average than white or Black applicants.29 Harvard also has a strong preference for legacies (offspring of alumni) that disproportionately favors white applicants.30 The majority did not condemn either of those features as unlawful. The Court’s apparent tolerance of admissions criteria that systematically favor applicants of one race over applicants of another race without referring to an applicant’s race suggests that the Court will allow universities to use factors like socioeconomic status and lack of a family history of higher education as admissions criteria.
Second, university administrators will search the opinion for evidence relevant to their decision whether to continue to rely on standardized tests in the admissions process. Some universities have already reduced their reliance on standardized tests and suggested that they may abandon them completely because of their adverse effect on efforts to enroll a racially diverse student body.31
That search will also produce valuable evidence. The majority relied on differences in the average test scores of admitted applicants by race to support its holding that Harvard and UNC discriminate against Asian applicants.32 That use of standardized test scores will increase the pressure on universities to eliminate their use of standardized test scores in the admissions process. Such a change would create an enormous challenge, however. Selective universities would have to identify other criteria that provide a good basis to predict an applicant’s performance as a student but that do not disadvantage Black applicants.
These are just a few of the effects of the Court’s opinion in the Harvard/UNC cases. The full effects are impossible to predict. They will unfold over a period of decades.
Professor Richard J. Pierce, Jr. is the author of over twenty books and 130 articles on administrative law, government regulation, and the effects of various forms of government intervention on the performance of markets. His books and articles have been cited in hundreds of judicial opinions, including over a dozen opinions of the U.S. Supreme Court.
Recommended Citation
Richard J. Pierce, Response, Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., Geo. Wash. L. Rev. On the Docket (July 3, 2023), https://www.gwlr.org/students-for-fair-admissions-affirmative-action.
