Opinion Arundhati Katju writes on rollback of affirmative action in the US: Equality against diversity

Issues of equality in education in America are closely connected to the country’s history of segregation between whites and persons of colour. The American Constitution’s Equality Clause was introduced in 1868 after the Civil War ended slavery in the South. Despite the Equality Clause, the Supreme Court upheld segregation in Plessy v Ferguson (1896), holding that racial segregation did not violate the Equality Clause so long as whites and blacks enjoyed equal facilities. This “separate but equal”doctrine continued until 1954, when Brown v Board of Education struck down segregated schooling.

Justice Harlan’s dissent in Plessy contained this immortal line that has shaped the way American politics understands equality: “Our Constitution is colour-blind, and neither knows nor tolerates classes among citizens.”

The colour blindness doctrine has allowed conservatives to demand formal equality over substantive equality, arguing that affirmative action discriminates against whites. They argue that meritorious white applicants, who no longer discriminate based on race, should not suffer because of a history of slavery and segregation.

This debate is further complicated by the immense demographic transition underway in the US. SFFA must be seen in this context. Today, whites constitute roughly 75 per cent of the population, blacks 13 per cent, Hispanics and Latinos 19 per cent, and Asians — a census category including both South and South-East Asians — roughly 6 per cent. US Census data predicts that by 2060, whites will fall to 44 per cent, while blacks, Hispanics and Asians will rise to 15, 28 and 9 per cent. Already, the US is the second-largest Spanish-speaking country in the world, after Mexico, and one study showed that from 2010-2017, Telugu was the fastest growing language in the US. This demographic transition has allowed Republicans to tap into fears that poor whites are being left behind by globalisation and technology, coupled with policies like affirmative action that favour minorities.

Before the Supreme Court, the petitioner organisation, SFFA, argued that white and Asian-American candidates were better qualified and would have been admitted in far greater numbers without affirmative action policies favouring black and Hispanic candidates. Harvard’s admissions data from 2009 to 2018 showed that blacks constituted 10-12 per cent of the undergraduate class, Hispanics roughly 10 per cent, and Asians 18-20 per cent. In 2023, after the case was filed, Harvard admitted a record 30 per cent Asian Americans, strengthening SFFA’s argument that Harvard discriminated against Asian-Americans and whites.

The argument that affirmative action was, in fact, discriminating against certain races found favour with the US Supreme Court. By a 6-3 majority, the Republican appointees on the Court joined to strike down affirmative action in university education. The majority opinion, penned by Chief Justice Roberts, held that the Court cannot choose which races to favour. However, it is Justice Neil Gorsuch’s concurring opinion that may prove most influential in the years to come. Gorsuch found that Harvard’s racial categories were poorly defined, “sweep[ing] into one pile East Asians (e.g., Chinese, Korean, Japanese) and South Asians (e.g., Indian, Pakistani, Bangladeshi), even though together they constitute about 60 per cent of the world’s population”. He also based his analysis not in the Equality Clause, but instead in Title VI, part of the Civil Rights Act of 1964, which prohibits private organisations that receive federal funding from discriminating on grounds of race, colour, or national origin.

Gorsuch’s decision takes Students for Fair Admissions beyond university admissions to impact any organisation that receives federal funding, including NGOs, corporations, and State administrations. Title VI is also worded similarly to Title VII, which prohibits discrimination in matters of employment. Both laws, being textually similar, are interpreted similarly as well. Many workplaces have adopted affirmative action in their hiring and promotion policies to benefit persons of colour and women. These policies may also come under renewed scrutiny.

In the wake of the Supreme Court’s ruling, President Joe Biden has advised universities to adopt “adversity” criterion to ensure diversity in admissions. Predictably, Indian-origin politicians gave statements on party lines — Vice President Kamala Harris, a Democrat, condemned the judgment, while Republican Nikki Halley said it protects individual freedom. Affirmative action will be a crucial issue when the US goes to the polls next year. While SFFA succeeded by clubbing Asian Americans together with whites, Asian Americans should remain cautious as its arguments play on stereotypes that they are “model minorities” and pit them against other minority groups.

The writer is a lawyer practicing at the Supreme Court of India