Affirmative action limited in US colleges: What the Supreme Court ruled, its significance

What is this case?

In “Students for Fair Admissions Inc. v. President and Fellows of Harvard College,” SCOTUS was dealing with the question of whether the admissions systems used by Harvard and the UNC are lawful under the Equal Protection Clause of the Fourteenth Amendment, which mandates that individuals in similar situations be treated equally by the law.

As two of the oldest institutions of higher learning in the US, both universities employ a highly selective admissions process that entails a student’s grades, recommendation letters, or extracurricular involvement. However, before this ruling, selection could also depend on a student’s race. At Harvard, the final stage of the application process placed candidates on a list containing their “legacy status, recruited athlete status, financial aid eligibility, and race. This was a “determinative tip” for a significant percentage “of all admitted African American and Hispanic applicants,” the court observed. A similar selection process was followed at UNC as well.

The June 29 ruling came on a plea filed by Students for Fair Admissions (SFFA), a nonprofit organization that aims “to defend human and civil rights secured by law, including the right of individuals to equal protection under the law.”

The SFFA had filed separate lawsuits against Harvard and UNC, arguing that their race-based admissions programs violate Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment. While the former prohibits discrimination based on race, colour, and national origin in programs and activities receiving federal financial assistance, the latter refers to the idea that a government body may not deny equal protection of its governing laws to the people. The SFFA also alleged discrimination against Asian-American students.

What did the court rule?

A nine-judge bench of the SCOTUS headed by Chief Justice John G Roberts, in a 6-3 ruling, declared the race-conscious admissions programs at Harvard and UNC “unconstitutional”, The New York Times reported. Specifically, the vote was 6-3 in the UNC case and 6-2 in the Harvard case, owing to Justice Ketanji Brown Jackson’s recusal in the latter since she served on the board of overseers at Harvard, which also happened to be her alma mater.

However, Justices Ketanji Brown Jackson and Sonia Sotomayor, in their dissenting opinions, denounced the decision. “With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colourblindness for all’ by legal fiat,” the African-American Justice Jackson said. Meanwhile, Justice Sotomayor cautioned against the decision’s “devastating impact”, adding that “race neutrality will entrench racial segregation in higher education.” Invoking Dr Martin Luther King Jr, Sotomayor also asserted that the moral universe’s arc will bend towards racial justice despite the court’s efforts “to impede its progress”.

Meanwhile, CJ Roberts, in his concurring opinion, said that a 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 colour of their skin. Our constitutional history does not tolerate that choice.”

Interestingly, another African-American judge, Justice Clarence Thomas, said that the “Universities’ self-proclaimed righteousness does not afford them license to discriminate on the basis of race”. He said that the universities’ admissions policies must be seen for what they are: “rudderless, race-based preferences designed to ensure a particular racial mix in their entering classes.”

Besides this, the majority opinion relied on a 1954 Supreme Court ruling “Brown v. Board of Education”, which held that state-sanctioned segregation in US public schools was unconstitutional.

However, the ruling contravenes the 1978, 2003, and 2016 SCOTUS rulings in “Regents of the University of California v. Bakke,” “Grutter v. Bollinger,” and “Fisher v. University of Texas,” respectively.

What do the precedents say?

The practice of affirmative action was upheld by SCOTUS in its 1978 ruling by a nine-judge bench. Allan Bakke, a 35-year-old white man, had twice applied for admission to the University of California Medical School at Davis and was rejected.

The university’s policy was to reserve 16 places in a class of 100 for “qualified” minorities under its affirmative action program. Although Bakke’s qualifications exceeded those of any of the minority students admitted in the past two years, his applications were turned down.

Thus, he moved court, contending that his exclusion was based on his race. In an attempt to strike a balance, the Court agreed that the university’s use of strict racial quotas was unconstitutional while ordering the medical school to admit Bakke, but also held that race can be used as a criterion in the admissions decisions of higher education institutes.

After this, in 2003, came the landmark “Grutter v. Bollinger” ruling holding that colleges could consider race as one factor in admissions because of the compelling interest in creating a diverse student body. However, the present ruling in SFFA’s case has “for all intents and purposes, overruled” this decision.

Following this, in the 2016 case of “Fisher v. University of Texas”, which involved a white student suing the University of Texas after being rejected for admission, the court upheld the principle of affirmative action in admissions, saying that colleges could consider race in admissions.

What is the US history with affirmative action?

The history of the US has been mired in problems of race emanating from its past experiences with slavery. However, during the civil rights movements between the late 1950s and early 1960s, affirmative action became an important subject in the US after repeated protests, court rulings, and legislative action.

Affirmative action, which is analogous to reservations in the Indian context, made its way into US state policy in 1961 when President John F Kennedy issued an executive order, creating the Committee on Equal Employment Opportunity, which required state-funded projects to take “affirmative action” to ensure that hiring practices are free from racial bias. In 1964, the Civil Rights Act, popularly known as Title VII, was passed as well. However, it only restricted affirmative action to American Indians or Indians living on or near a reservation.

After this, in 1965, President Lyndon Johnson carried forward this baton and issued another order, requiring firms under contract with the federal government not to discriminate, and to “take affirmative action to ensure that applicants are employed and that employees are treated during employment, without regard to their race, creed, colour, or national origin.” A few years later, in 1969, President Richard Nixon initiated the “Philadelphia Order”, to guarantee fair hiring practices in construction jobs.

What are the possible ramifications of this ruling?

US President Joe Biden has “strongly” disagreed with the SCOTUS ruling, adding that “Discrimination still exists in America” and that this verdict should not become the last word. Indicating that SCOTUS’s current composition is lopsided, with six out of nine judges being conservative and three being liberal, Biden said, “This is not a normal court.”

However, the admissions officer at Yale Jackson School of Global Affairs, Asha Rangappa, has clarified that the ruling’s impact will be much lesser than what is being suggested. A possible implication here is that those applicants whose identity is shaped by race will need to explicitly articulate it for it to be considered. Although most applications already include a supplemental diversity essay, making the process of describing how one’s background impacts their experience more explicit will make it easier for universities to defend why race matters in admitting a person, Rangappa said. Hinting at the possibility of the institution’s newfound inability to monitor a class’s racial composition, she clarified, however, that the ruling will not bar schools from increasing “diversity recruitment based on race” or having “yield programs targeted for admitted minorities”.

On the other hand, Harvard and UNC have maintained that they used race as only one factor among others for admission without quotas, and the same was permissible under previous Supreme Court precedents. Curbing its consideration would cause a significant drop in enrollment among students from underrepresented groups, the universities said.