Month: February 2024

During recent years the Supreme Court of the United States has gone through an ideological shift led by the Court’s six conservative justices, three of whom were appointed by President Donald Trump. In June 2023, The U.S Supreme Court continued its conservative policies by outlawing, in a 6-3 split, affirmative action in higher education in Students For Fair Admissions v. President and Fellows of Harvard College (SFFA v. Harvard), along with a ruling in a similar case SFFA v. University of North Carolina. Petitioner SFFA, an organization created by conservative legal activist Edward Blum, sued Harvard, arguing that considering race in its admissions process is unconstitutional and does not comply with Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment. The lower courts held that Harvard’s admissions program comported with Supreme Court precedents on the use of race in college admissions. However, the Supreme Court found that Harvard’s admission program violates the Equal Protection Clause. The decision requires colleges and universities to stop using race as a factor when admitting students. This blog is based on the majority opinion of the Court delivered by Chief Justice John Roberts in SFFA v. Harvard, and consists of the facts, decisive legal problems and arguments of the case. 

According to the Equal Protection Clause: “No State shall deny to any person within its jurisdiction the equal protection of the laws.” One of the main arguments presented by Chief Justice Roberts was that Harvard’s admissions system failed to meet the criteria for derogation from the Equal Protection Clause. Any exceptions to equal protection must satisfy “strict scrutiny”; that is, any exception to the Constitution’s demand for equal protection must 

serve a compelling interest and is narrowly tailored to further that interest. In this case it meant that Harvard would have had to prove that said criteria applied to its race-based admissions and the diversity goals it pursues. One of the deciding matters of the case at hand was that the Court found that the Harvard program, “though good willing”, couldn’t be subjected to meaningful judicial review because Harvard failed to display in a measurable way how its admission system would fulfill its diversity goals. 

Rest of Chief Justice Robert’s argumentation lies heavily on prior Supreme Court rulings. In order to derogate from the Equal Protection Clause Harvard’s program would have to comply with the Equal Protection Clause’s twin-commands established by the Supreme Court precedents Grutter v. Bollinger and Regents of the University of California v. Bakke. According to the twin commands of the Equal Protection Clause “race may never be used as a ‘negative’ and that it may not operate as a stereotype.” In Bakke it was established that race could be used only as a plus and never as a negative. Justice Roberts convincingly arguments that college admissions are “a zero-sum”. What he means by this is that a benefit given to someone is a disadvantage – or a negative – to other. Taking into account that there are only so many students admitted per class this makes sense why the Court would deem considering race in admissions as a negative to some applicants. Grutter, in turn, sets limits to ensure race-based admissions did not result in stereotyping. About stereotyping, Chief Justice Roberts argues that giving anyone a plus factor based on their race reduces them to a racial caricature and implies that students of a particular race, because of their race, think alike. 

One of the main arguments of the Court that sparked my bewitchment was the interpretation of “sunset provisions” established by Grutter. In Grutter it was reasoned that racial preferences would no longer be necessary within 25 years of the decision. To me the timeframe came across more as an optimistic example rather than a set-in-stone end point for affirmative action. However, in the majority opinion Chief Justice Roberts held that affirmative action must have a definite end. He observed that the Harvard program had “no end in sight” and thus lacked “sunset provisions” and “logical end point” as established by Grutter and consequently did not comply with the precedent. 

The Court found that Harvard’s admission program failed each criteria for derogating from the Equal Protection Clause of the Fourteenth Amendment, which were that race-based admissions programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and they must end at some point. Doing so, the conservative majority ended four decades of precedent established in prior Supreme Court decisions, including Regents of the University of California v. Bakke, Grutter v. Bollinger, and Fisher v. University of Texas, which validated affirmative action in college admissions. The Court’s ruling has raised widespread worry, whether college diversity can survive the end of affirmative action. That remains to be seen. However, concluding words of the majority opinion of the Court were that the Court’s ruling does not prohibit universities from considering an applicant’s discussion of how race affected their life and experiences.  I think that this “loophole” may soften the blow, allowing colleges to find new ways to pursue their diversity goals. 

The majority opinion of the Court has convincing argumentation. Actually discussing one’s experiences rather than just clicking a box in your application seems like a step towards a better direction. However, in order to understand the problematic nature of this case, one must be familiar with the historical context. Minorities have been historically underrepresented in colleges and universities in the U.S. and it hasn’t until recent years that this has begun to change. To now decide that a certain time limit has gone and affirmative action in admissions must cease seems a little odd to me, considering that racism and discrimination are still very prominent in the U.S. 

Team Harvard, Case Argumentation Analysis

In previous years, multiple precedents set out by the U.S Supreme Court have been reassessed by the new conservative majority within the Court. This has resulted in cases being overturned. On June 29, 2023, the U.S Supreme Court overturned Grutter v. Bollinger, 539 U.S. (Hereinafter: Grutter case), in the case Students for Fair Admissions v. President and Fellows of Harvard College, 600 U.S. (hereinafter: Harvard case), forbidding all forms of race-based discrimination in education admissions decisions. Justice Thomas joined the majority opinion in full but wanted to write a concurring opinion to further argue why all forms of discrimination based on race are obstructing the objectives of the U.S. Constitution – including the so-called positive discrimination also known as affirmative action.

Justice Thomas’ arguments base their ground on the thought that affirmative action is a flagrant breach of the Equal Protection Clause set out in the Fourteenth Amendment to the Constitution of the United States. Equality has been one of the main goals of the U.S. legal system after ratification of the Civil Rights Act and the Fourteenth Amendment in 1866. Looking at the precedents set out by the U.S. Supreme Court after the ratification of the aforementioned statutes, it can be seen that race was meant to be disregarded completely before law. At least that is what Justice Thomas argues. For example in the case Strauder v. West Virginia, 100 U.S. (1880), the Court ruled that the Fourteenth Amendment prohibits “express racial classifications, no matter the race affected”. This is why Justice Thomas views that the Constitution is and always has been colorblind. 

Despite the ultimate goal of a colorblind society, race-based discrimination has seemed to be a norm among multiple institutions in the U.S. The Grutter case – since overruled – allowed universities to use race as one of the characteristics defining an applicant in their admissions process and many of them, such as Harvard and University of North Carolina (UNC), did. Undeniably it is difficult to get into the elite universities in the U.S to begin with. Yet Harvard and UNC made the conscious decision to make admission even harder for some by reserving a number of spots solely for black and Hispanic people. As Justice Thomas discusses in his opinion, how can the universities explain the rejection of let’s say a Chinese immigrant because of her skin color? They cannot. That is why Justice Thomas finds it absurd that the application process successfully masked discrimination as something positive and diversity-enhancing while other races, immigrant groups and forms of diversity, like religion, got completely ignored. In his words, these policies “fly in the face of our colorblind Constitution and our Nation’s equality ideal.”

However, the current U.S. Supreme Court applies the principle of strict scrutiny on matters concerning race-based discrimination. To meet the requirements for strict scrutiny, the universities have to have a compelling state interest in order to lawfully contravene the Constitution. Justice Thomas makes it very clear that in the Harvard case neither of the universities had a real reason to discriminate applicants based on race. He prefaces this by describing Harvard’s reasonings, e.g. the positive effects of diversity, as “too vague” and more social goals rather than educational. Justice Thomas goes as far as stating that he believes no university is ever going to meet the standard of strict scrutiny in hopes of discriminating based on race any longer. 

Justice Thomas not only sees the actions of the universities but the whole idea of affirmative action as problematic. Throughout the history of the world and especially the U.S., race, more specifically racial segregation, has played a big part in society. The consequences have never been good. From the Independence of the United States to the ratification of Thirteenth Amendment in 1865,  a number of Africans and African Americans were enslaved. From the 1800’s up until the Brown v. Board of Education, 347 U.S. decision in 1954, segregation within educational institutions was allowed – and the list goes on.  Even today, Justice Jackson argues that acts of “positive discrimination” towards for example black people cause more harm than good for all races. With affirmative action, every other race than black is forced to have their rights diminished. Yes, black people might get into elite schools easier, but in the process are exposed to unfair stereotyping and prejudices. Moreover, these unjust admissions lead to less success academically simply because the students were admitted based on their skin color, not skills. This proves that the action of favoring a specific race, whether the intent is positive or negative, inevitably puts some other race, and most likely also the favored race, to a more unfortunate position. 

In conclusion, Justice Thomas believes that the classification of people based on the color of their skin yields no positive outcomes. His concurring opinion emphasizes his view that affirmative action is fundamentally inconsistent with the purposes of a truly equal and colorblind society as envisioned in the Constitution. That is why he wishes that, aligning with the principles set out in the Declaration of Independence and the Constitution of the U.S, everyone would be seen as individuals and equal to one another, especially before the law.

Team Harvard, Case Argumentation Analysis

For decades a notable number of U.S. colleges and universities, such as Harvard and the University of North Carolina (UNC) have decided which applicants to admit or reject for their small number of coveted spots based in part on the race of the applicant. This is known as affirmative action. On June 29, 2023, the U.S. Supreme Court issued a long-awaited decision addressing the legality of race-conscious affirmative action in college admissions programs in the case SFFA v. Harvard (Harvard case). The Court held in its decision written by Chief Justice John Roberts that Harvard and UNC’s admissions programs, which account for race at various stages in the process, violate the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. While the Court noted that promoting diversity in higher education was a commendable goal, the affirmative action policies used by Harvard and UNC were not “sufficiently coherent” to survive strict scrutiny in the context of having racial preferences in the admissions process. Justice Neil Gorsuch filed a concurring opinion, in which Justice Thomas joined. Justice Gorsuch argues that in addition to the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964 does not tolerate this practice of race-based affirmative action either.

A frequent requirement in the Common Application to several U.S. higher education institutions, is that applicants are prompted to tick one or more boxes to explain “how you identify yourself”. The choices available are: American Indian or Alaska Native; Asian; Black or African American; Native Hawaiian or other Pacific Islander; Hispanic or Latino; or White. Justice Gorsuch argues that these classifications rest on incoherent stereotypes. For example, the “Asian” category divides into one pile East Asians and South Asians, even though together they constitute around 60% of the world’s population. The “White” category includes anyone from Europe, Asia west of India, and North Africa. These boxes originate from a federal interagency commission in the 1970s which aimed to facilitate data of college admissions. The commission acted without any input from anthropologists, sociologists, ethnologists, or other experts. Despite the original aim of this practice, institutions such as Harvard and UNC have been using the responses as a method to ensure a certain level of diversity amongst their students, while also discriminating against specific races. In Harvard it was argued that at least 10% of Harvard’s admitted class would likely not be admitted in the absence of Harvard’s race-conscious admissions process. Thus, race-based tips are determinative in securing favorable decisions for a significant percentage of a particular race.

Title VI prohibits a recipient of federal funds from intentionally treating any individual worse – even in part – than another similarly situated person because of their race, color, or national origin. It does not matter if the recipient can point to “some other factor” that contributed to its decision to disfavor an individual. Additionally, it does not matter if the recipient discriminated in order to advance some other intention or motivation. Justice Gorsuch argues that Congress in 1964 could have taken this law in various directions but instead chose a simple and profound rule to safeguard the civil rights of all Americans. To support his argument, Justice Gorsuch noted the short step from Title VI to Title VII, under which Congress made it unlawful for an employer to discriminate against any individual because of their race, color, religion, sex, or national origin. The Supreme Court has long recognized that when Congress uses the same terms in the same statute, it should be presumed that they have the same meaning. Justice Gorsuch describes the statues as having “materially identical language” and analogizing the definition of “discrimination” under Title VI to the parallel definition of “discrimination” under Title VII as found in Bostock v Clayton County. In Bostock the court found that to “discriminate against” a person means “treating that individual worse than others who are similarly situated”. Thus, this same definition should be given to the wording of Title VI. 

In arguing that Title VI applies to the Harvard case, Justice Gorsuch states that no one disputes that both universities operate programs or activities receiving federal financial assistance, that both institutions consult race when making their admissions decisions and that there is no doubt that both Harvard and UNC treat some applicants worse than others at least in part because of their race. Title VI has been misinterpreted for decades stemming from the Supreme Court’s decision in Bakke. In Bakke it was argued that Title VI is coterminous with the Equal Protection Clause and thus they read Title VI to prohibit recipients of federal funds from doing what the Equal Protection Clause prohibits States from doing. The Equal Protection Clause reads: “No State shall deny to any person within its jurisdiction the equal protection of the laws” thus it operates in States and does not regulate the conduct of private parties. In contrast, Title VI covers not just many State actors, but many private actors too. Therefore, Title VI reaches entities and organizations that the Equal Protection Clause does not. Justice Gorsuch states that the moves made in Bakke were not statutory interpretation, but they were judicial improvisation, which goes against the Supreme Court’s duty to give effect to every clause and word of a statute. He argues now that the Court corrects its reading of the Equal Protection Clause in Harvard, courts should also correct course in their treatment of Title VI. Title VI is more than a mere suggestion; it bears independent force beyond the Equal Protection Clause. It does not grant special deference to university administrators, nor does it endorse racial discrimination to any degree or for any purpose. 

To sum up, the removal of discrimination in admission processes is vital to ensure equal opportunity for all regardless of one’s race, color or national origin. Justice Gorsuch convincingly argues that in addition to violating the Fourteenth Amendment of the U.S. Constitution, the affirmative action practice also violates Title VI of the Civil Rights Act since the statute bars discrimination on the ground of race. On this basis, Justice Gorsuch reasoned that affirmative action was forbidden by statute regardless of any constitutional arguments. Title VI has independent force, with language and emphasis in addition to that found in the Constitution and is more than a simple paraphrasing of the Equal Protection Clause. It remains to be seen how the decision in Harvard will impact diversity amongst students in U.S. higher education institutions. 

Team Harvard, Case Argumentation Analysis

Decades of case law have allowed Affirmative Action in university admissions processes. However, the Roberts Court overturned this practice in Students For Fair Admissions v. President and Fellows of Harvard College. The majority of the Court held that race conscious admissions in the Harvard admissions program violate the Equal Protection Clause of the 14^th amendment. Affirmative action is a topic of much emotion and opinion. This blog post discusses Justice Sotomayor’s dissenting opinion. 

History behind Affirmative Action

Justice Sotomayor’s opinion rests on two primary arguments, advocating for the necessity of Affirmative Action in college admissions processes. Her dissenting opinion puts a strong emphasis on historical injustices, and she presents the importance of Affirmative Action in a fight against structural racism and discrimination in society. To understand the meaning of this, it is crucially important to understand the US history and the complex notion of race and racism rooted in society. The second argument highlights the need for diversity in higher education, that has been seen as a compelling state interest (Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978))

Firstly, it is necessary to dive into the history behind racism in the US. Justice Sotomayor grounds her arguments on historical inequality, oppression, and segregation of the Black people. From the era of slavery preceding the 13^thamendment, through the implementation of Black Codes and until the Civil Rights Act of 1964, almost 400 years of racial discrimination based on constitutional law have made a base for the use of Affirmative Action. 

Justice Sotomayor highlights the historical inequality of education and the importance of education for Black people. Due to historical injustices, schools with the majority of Black students received less funding, less resources and combined with residential segregation this led to the lack of equality in educational systems. This regards Hispanic students and other ethnic minorities as well. To this day, schools with the majority of non-white pupils lack funding and fair resource allocation (The Education Trust). 

Secondly Justice Sotomayor underlines the concept of Affirmative action as a compelling state interest. Case Bakke has presented that having a diverse student body is a compelling state interest – diversity in educational institutions reflects the reality of a diverse and multicultural society. Justice Sotomayor notes that many of the Nation’s leaders are educated at these prestigious colleges, which makes it even more important to have a diverse student body to insure diversity in high position jobs. 

Legal aspects 

The legal problems presented in Justice Sotomayor’s opinion concentrate on the interpretation of the 14^th amendment and strict scrutiny. The Equal Protection Clause of the Fourteenth Amendment ensures equal rights and the equal protection of laws for every citizen, despite of race. Justice Sotomayor argues that the race-conscious laws, such as the Freedmen’s Bureau Act (1865), that were enacted simultaneously with the 14^th Amendment, were a strong indication that race-conscious measures were desperately needed “to fulfill the amendments promise for equality”. 

One big legal problem culminates in the Courts precedent Grutter v. Bollinger, 539 U.S. 306 (2003) and on the time frame for the usage of Affirmative Action. In Grutter it is said that “that all governmental use of race must have a logical end point”. Justice Sotomayor strongly underlines that “Speculating about a day when consideration of race will become unnecessary is arbitrary”. Whilst I agree that predicting an ending date for no longer needing Affirmative Action is impossible, there is a need to establish an end, not in time, but depending on changes within society and attitudes. There would have been a need for even more precise reasoning about when Affirmative Action is no longer needed in Justice Sotomayor’s dissenting opinion. 

Argumentation

A strong controversy arises over whether the UNC’s and Harvard’s admissions programs are narrowly tailored, as Grutter insist. The issue is whether the qualification for narrow tailoring passes strict scrutiny, as it needs to when it comes to compelling state interest. As Grutter presents, there is no need to have a fully race-neutral list, as long as other aspects are considered. The problem is highlighted by the ambiguity of the data. Justice Sotomayor considers the data provided by the SFFA to be unreliable as it does not show the bigger picture – in reality, the data shows “that admissions have increased for all racial minorities, including Asian American students”. Justice Sotomayor highlights that in Harvard, Asian Americans are the biggest minority group among Hispanic and African American students. As there is a lot of data to support both views, I recognize the problematic of stereotypes and harmful categorization of ethnic minorities, that might cause injustice in the applications process, even though Justice Sotomayor puts a great emphasis on the holistic review these universities use while considering applicants. 

On the contrary there are little arguments from the majority regarding admissions for some privileged groups, such as the children of donors and legacy applicants (ALDC applicants), who make up 30% of applicants admitted every year, of which the majority is white and the biggest minority group being Asian Americans. If the Court would truly want to take down all measures that create inequality among college admissions, wouldn’t they have a say in these unfair admissions?

Reflection

As I agree with Justice Sotomayor, that race-conscious admissions on a limited note are good for promoting equality in education, I am going to highlight some issues regarding Affirmative Action and in SFFA’s proposals for race-neutral alternatives. By disregarding race completely and putting emphasis on one’s socio-economic stance and academic merit only does not advance intersectionality in these institutions, which is the founding issue of educational inequality. Closing the opportunity gap should consider all ethnic minorities in all socio-economic stances for true equality in institutions, that have been established for white people only. When applying Affirmative Action, the primary objective should be to enhance intersectional equal opportunity and ensure that race-conscious admissions genuinely benefit the broader minority group, rather than solely benefiting a small fraction of the wealthy minority. Nor should the aim be to create the appearance of institutional diversity solely for external perception, but rather to genuinely promote diversity and inclusion within the student body. The need for class-conscious and race-conscious admissions is vital in creating equal opportunity, not race-blindness, that today’s Court promotes in SFFA v. Harvard. 

Team Harvard, Case Argumentation Analysis

In this blog text the focus is on Justice Jackson’s dissenting opinion. As opposed to the other Justices in SFFA v. Harvard, Justice Jackson did not participate in the case SFFA v. Harvard due to her former position as a board member in one of the university’s governing bodies, the Body of Oversees. She did however participate in the consolidated case SFFA v. UNC. The case was very similar to Harvard: SFFA sued the University of Northern Carolina for their admissions process because they also used race as a factor in the process. 

Justice Jackson dissents from the main opinion of the court and she joins Justice Sotomayor’s opinion without qualification. They agree about the legal matter that is the fact that the Constitution or Title VI of the Civil Rights act doesn’t contain anything that would prohibit the institutions from taking race into account to ensure the racial diversity of admits in higher education. In addition to this Justice Jackson wants to explain in her opinion the societal perspective to why taking race into consideration in this context is important.

The main argument that Justice Jackson leans on is that the court has not taken history and reality into consideration when making this decision. The court seem to forget how the black people have been treated for hundreds of years. In the opinion Justice Jackson describes the discrimination they have been encountering during the years, from slavery to Jim Crow -laws to modern-day racism and all between those. As an example, during 1930-1960 only 1 % of the mortgages in the USA was granted to African Americans because of government policy and the banks’ decision not to permit loans to “high risk areas” i.e. the black neighborhoods. Those who were lucky to get a loan had to pay unreasonably high interests. Black people evidently live in worse conditions when looking at differences financially and health wise. There’s a gap between races that still is existing.

Another big issue Justice Jackson sees in the majority opinion is that they haven’t explained the application process thoroughly. They portray it as a race-based process when it is quite the opposite. When applying to UNC the applicant is not obliged to submit demographical information like race and gender, but if the applicant discloses their race, it can be seen as any other evaluating criteria such as extracurricular activity or special talents. It is also a factor to assess the merits and inheritance equally because this is how the admissions board can evaluate the advantages or disadvantages the applicant has born with. The majority seem to have misunderstood this or somehow just swept it under a rug. So as, Justice Jackson argues the submittal of race in an admission can be only seen as a plus to the admission letter because diversity is a great interest of the university. 

The way Justice Jackson sees the court’s decision is that this colorblindness will even further widen the gap, quite opposite of what the majority thinks. She says that this “will delay the day that every American has an equal opportunity to thrive, regardless of race.” If the gap widens more and the diversity reduces, the students will not have as good starting point to their post-graduate life because as Jackson argues diversity “improves cognitive abilities and critical thinking skills” and “reduces prejudice”. Seems like quite important skills a post-graduate should possess. 

What sums up Justice Jackson’s opinion well is that it is not the white applicant’s fault that they are going to be a seventh-generation graduate from the UNC. They should get their legacy admission, but neither is it the black person’s fault that they are first-generation and maybe fought through a really though life to get to where they are today. The point is that if the universities now get colorblind, they forget that the applicants’ race has in many cases played a role in where the applicant is now in their life. According to Justice Jacksons dissenting opinion, to become colorblind does not solve the issue of race-based disadvantage. 

Team Harvard, Case Argumentation Analysis

This blogtext gets its basis from a recent opinion of the Supreme Court of the United States. Last year the Supreme Court ruled in a case called SFFA v. Harvard, which has to do with affirmative action, i.e positive discrimination. Just to give you a very brief summary of it, in Harvard case the Supreme Court ruled that institutions of higher education must treat university applicants based on their experiences as individuals, instead of treating them as representatives of their race and giving them benefits because of their race. In other words, the Supreme Court ruled that the Constitution of the United States does not tolerate race-based benefits to ethnic minorities from universities. 

The latest remarkable case before the Harvard case in the context of affirmative action was the Fisher v. University of Texas at Austin case. There are actually two Fisher cases, to be exact. Both of these cases have to do with the same course of events. Just to inform those who are not so familiar with the US Justice System, this kind of double processing in the Supreme Court is not normal. Instead, it is very unusual. However, the juridical question was a bit different in both of these cases here. 

In the Fisher I case, the question was whether the Texas University’s use of race in the admission process was consistent with the Fourteenth Amendment of the US Constitution or not. This Amendment includes the Equal Protection Clause, which basically prohibits individuals, in general, to be treated differently on account of their race or ethnicity. Now, Texas University wasn’t using race in its admissions process in terms of directly giving applicants points, or numerical value, as it stands in the Opinion of the Court. However, it was still trying to increase racial minority enrollment on campus and thus, took ethnicity into account in the admission process. The petitioner had applied for admission to Texas University and had been rejected. She alleged that the University of Texas violated the Equal Protection Clause by considering race in the admission process. The Supreme Court discussed the matter in light of its earlier cases and decisions addressing the question of racial minority being a positive factor in universities’ admissions processes. Cases Regents of the University of California v. Bakke and Grutter v. Bollinger were important cases in this regard. The most essential conclusions from these cases were that ” the attainment of a diverse student body … is a constitutionally permissible goal for an institution of higher education”, ”any racial classification must meet strict scrutiny” and ”classifications are constitutional only if they are narrowly tailored to further compelling governmental interests”. In the Fisher I case, the Supreme Court basically endorsed these conclusions. However, it didn’t actually take a position on the constitutionality of Texas University’s admission process. Instead, it just set forth the controlling principles for the Court of Appeals. These three controlling principles were: 1. ” Race may not be considered [by a university] unless the admissions process can withstand strict scrutiny ” 2. “ the decision to pursue ‘the educational benefits that flow from student body diversity’ … is, in substantial measure, an academic judgment to which some, but not complete, judicial deference is proper ” 3. ” no deference is owed when determining whether the use of race is narrowly tailored to achieve the university’s permissible goals ”. Court of Appeals then determined that the admission process in question conformed with those controlling principles, in other words, strict scrutiny. 

In the Fisher II case, the Supreme Court took a position specifically on the admission process of Texas University and its constitutionality. It considered the case in light of principles that it set forth in the Fisher I case. This Fisher II case, was decided by a 4-3 vote, so the opinions of the judges varied significantly compared with Fisher I case. One could think that the opinion should have been unanimous, or at least almost unanimous, because the Fisher I case was decided by 7-1 vote. Nevertheless it was not. The majority considered that the Texas University had articulated concrete and precise goals for their admissions policy, basically by aiming at a diverse student body, which then would benefit the academic community with creative ideas from different cultures et cetera. This is very important for acceptability of using affirmative action in student admissions. The majority also considered, unlike the petitioner, Fisher, that Texas University had not attained its goals in terms of ethnic diversity by its usual application processes. This viewpoint was proven by statistics. Moreover, the majority considered, unlike the applicant, that the way in which Texas University was taking ethnicity into account, was an effective way to increase diversity in classes. This was backed by statistics too.

On the other hand, the dissenting judges considered the following. They weren’t convinced at all about the theory that ethnic diversity would produce educational benefits, nor that the theory would be strong enough reason to treat applicants differently because of their race. This was an interesting statement, considering that the Supreme Court had ruled the opposite in an earlier case, the Grutter case. They also questioned why the University of Texas said that underrepresentation of Asian-American students would justify their admission policy when the policy would not even benefit them. Moreover, they thought that the University of Texas hadn’t given a definition for the term ” critical mass ” although achieving this ” critical mass ” of certain minority groups was allegedly the goal of their policy of affirmative action. Also, they had a hard time defining how and how much race affects admissions decisions. To emphasize, concrete and precise goals of this kind for admissions policies are vital for their acceptance, as was ruled in the Fisher I case. Unlike Texas University, they also considered that the so-called normal admission process will bring the educational benefits with minority group students that get accepted through it, and thus the race-conscious admission policy is not needed, while Texas University thought that minority students who get admissioned normally, are not that beneficial to academic community as the students that get admissioned through the race-conscious admission program.

To sum up, the judges disagreed whether the Texas University’s race-conscious admission program conformed with the standards that they almost unanimously set in the Fisher I case. This kind of interesting set-up originates from the partly political Supreme Court system. Looking from Europe, it seems in a way odd. On the other hand, this kind of system can be seen as more democratic than an European purely judicial system.

Team L. M. W. F. (Harvard, Case Genetics) 

In SFFA v. Harvard (2023), The Supreme Court of the United States effectively (but not explicitly) overruled Grutter v. Bollinger (2003), a landmark decision where the Supreme Court held that the University of Michigan Law School’s use of racial preferences in student admissions did not violate the Equal Protection Clause of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964 or the 42 U.S. Code § 1981. The Grutter case precedes Fisher v. University of Texas(2013), Fisher v. University of Texas (2016) and the aforementioned Harvard case in the group of significant U.S. Supreme Court cases regarding affirmative action in student admissions. 

Grutter was about a woman named Barbara Grutter, who was denied admission to the University of Michigan Law School. She filed a lawsuit against Lee Bollinger (the President of the University of Michigan at the time), arguing that the Law School had discriminated against her in the admissions process on the basis of race. The Law School had an admissions program which gave a significantly greater chance of admission to applicants belonging to certain minority groups. Before it reached the Supreme Court, the case was tried in lower federal courts, first in a U.S. District Court and subsequently in the U.S. Sixth Circuit Court of Appeals. The District Court held the Law School’s use of race in its admission program to be unconstitutional but the Sixth Circuit reversed this decision, which led to the case ending up in the Supreme Court.    

The U.S legal system is based on case law and stare decisis, meaning that courts will adhere to precedent in making their decisions. In the Opinion of the Court of Grutter, the Court adhered to Adarand Constructors, Inc. v. Peña (1995), holding that 1) all racial classifications must serve a compelling state interest, and 2) they must be narrowly tailored to further that interest. This two-part, fundamental U.S. legal standard is called strict scrutiny. 

The Law School argued that student body diversity creates educational benefits, and thus in the context of higher education, serves a compelling government interest. Up to this point, Justice Lewis Powell’s opinion (from the Court’s previous ruling on the use of race in university admissions, Regents of the University of California v. Bakke (1978)) on permissible race-conscious policies had “served as the touchstone for constitutional analysis of race-conscious admissions policies” (Grutter), although it was unclear in the lower courts whether it was binding precedent. The Court decided to endorse Justice Powell’s opinion, and rule that the Law School had a compelling state interest in a diverse student body. In the Court’s view, attaining a diverse student body was at the heart of the Law School’s proper institutional mission.

Justice Powell’s opinion from Bakke also laid the foundation to decide on “narrow tailoring”, and the Court found that the Law School’s admissions program was narrowly tailored to further the aforementioned interest, since the Law School engaged in a highly invidualized, holistic review of each applicant’s file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment, and the admissions program did not unduly burden individuals who are not members of the favored racial and ethnic groups.  

To sum up Grutter, the Court ruled that the Law School’s use of race in student admissions was not unconstitutional since it served a compelling state interest and it was narrowly tailored to further that interest. Additionally, the Court specified that race-conscious admissions policies must be limited in time, and that all governmental use of race must have a logical end point.

As stated in the beginning, the Court effectively overruled Grutter in the Harvard case last year. In the Harvard case, an organization named Students for Fair Admissions (SFFA) filed suit against Harvard University. It was once again alleged that a race-based affirmative action program in student admissions is unconstitutional. This time around the federal lower courts ruled in favor of affirmative action but surprisingly the Supreme Court reversed the ruling of the U.S. Court of Appeals for the First Circuit, holding that Harvard’s admission program violates the Equal Protection Clause of the Fourteenth Amendment.

Unlike in Grutter, the Court found in the Harvard case that the use of race in student admissions is not a compelling state interest that can be narrowly tailored to further that interest. The Court viewed relevant interests such as training future leaders, acquiring new knowledge based on diverse outlooks, and preparing engaged and productive citizens only as commendable goals but not as sufficiently coherent interests for the purposes of strict scrutiny. The Court also noted that these goals (in order to know when they have been reached so that racial preferences can end) are difficult or nearly impossible to measure, and that the “unclear connection between the goals that respondents seek and the means they employ preclude courts from meaningfully scrutinizing respondents’ admissions programs”. Finally, the Court considered the statement from Grutter that race-conscious admissions policies must be limited in time, and that all governmental use of race must have a logical end. The Court held that Harvard’s admissions program lacked the logical end point that Grutter required.

In conclusion, Grutter appeared to be, atleast to some extent, a sequel to Bakke where Justice Powell’s views of affirmative action were confirmed to be binding legal principles. However, the Harvard case significantly changed these legal principles. The fact that the Court effectively overruled Grutter but did not explicitly classify it as an overruling, is interesting. In the dissenting opinion of the Harvard case, Justice Sotomayer states that the Court had now overruled decades of precedent. Is the stare decisis doctrine something that guides the Court to decide in a certain way, or rather a tool to justify the decision that has already been made?

Team L. M. W. F. (Harvard, Case Genetics) 

Introduction

Almost half a century ago, in 1978, Allan Bakke initiated a battle (Regents of the University of California v. Bakke) over an issue that had already, and continues to, influence decisions by the United States Supreme Court regarding selection processes, such as university admissions. Minorities have always been fragile to discrimination and some entities strive to improve their position in society. Is it ethically acceptable for universities and other prominent institutions to prioritize assisting minorities in accessing their programs, where selection processes primarily emphasize cognitive skills and abilities, clearly at the expense of the majority and therefore violating the Fourteenth Amendment (Equal Protection Clause)? The U.S. Supreme Court have recently concerned with the similar case, SFFA v. Harvard where they first considered that issue in Bakke case.

Allan Bakke, a white applicant to the University of California Medical School at Davis became a somewhat central figure in affirmative action processes in the 1970’s. Bakke Applied to the medical school twice but was denied admission both times even though he possessed strong qualifications. Bakke later discovered that the university was reserving 16 out of 100 seats for minority applicants as a part of the university’s affirmative action program.

Case analysis

The Bakke Case made its way to the United States Supreme Court, where the justices grappled with the complexities of affirmative action. In a landmark decision in 1978, the Court issued a fragmented ruling with multiple opinions. However, it was the opinion authored by Justice Lewis F. Powell Jr. that formed the majority decision.

Justice Powell’s opinion in the Bakke case was pivotal. He acknowledged the compelling interest in diversity in higher education, recognizing that a diverse student body enriches the educational experience for all. However, he also articulated the limitations of affirmative action, particularly the use of strict racial quotas, which he deemed unconstitutional.

In his nuanced opinion, Justice Powell crafted a delicate balance, asserting that race could be considered as one of several factors in university admissions but striking down the use of rigid quotas. This approach affirmed the importance of diversity while safeguarding the principles of equal protection under the law.

As said, The Supreme Court affirmed in the Bakke case that affirmative action could be a legal factor in university admission policies, but strict racial quotas were unconstitutional. This decision paved the way for subsequent cases such as Grutter v. Bollinger, where the Court affirmed the importance of diversity in higher education. 

Handling of the Regents of the University of California v. Bakke by the litigants in SFFA v. Harvard

The Bakke case paved the way for subsequent affirmative action cases that further shaped the legal landscape. One such case is the landmark Grutter v. Bollinger (2003), where the Supreme Court upheld the University of Michigan Law School’s affirmative action policy, reaffirming the importance of diversity in higher education. Similarly, Fisher v. University of Texas (2013, 2016) challenged the race-conscious admissions policy of the University of Texas at Austin, highlighting ongoing debates over the constitutionality and efficacy of affirmative action.

In the Harvard case, the respondents argued that its holistic admissions process, which considers a wide range of factors beyond just academic achievement, including personal qualities, extracurricular activities, and socio-economic background, aligns with the Supreme Court’s recognition in Bakke that diversity is a compelling interest in higher education. The university emphasized that race is just one factor among many in its admissions decisions and that its use of race is narrowly tailored to achieve the educational benefits of diversity, as outlined in the Bakke decision.

While the respondents did not explicitly rely solely on the Bakke case, it did draw upon the broader legal principles established in Bakke and subsequent affirmative action cases to justify its admissions policies and defend against the allegations of discrimination.

Students for Fair Admissions (SFFA) did not explicitly invoke the Allan Bakke case in their legal arguments against Harvard University in the Harvard case. Instead, SFFA primarily focused on presenting evidence and arguments alleging that Harvard’s admissions policies discriminated against Asian-American applicants.

While SFFA did not directly reference the Bakke case, the broader legal principles established in Bakke regarding affirmative action and the consideration of race in university admissions likely informed the broader legal context within which the Harvard case was argued. However, SFFA’s specific arguments in the Harvard case primarily revolved around the statistical evidence and allegations of discriminatory practices, rather than invoking specific legal precedents like the Bakke case.

Conclusion

The Bakke case stands as a testament to the complexities of balancing competing interests of equality and diversity in education. While it did not provide definitive answers, it sparked important conversations and shaped the trajectory of affirmative action jurisprudence in the U.S. Understanding the nuances of the Bakke case is essential for grappling with the ongoing pursuit of equity and inclusion in higher education and beyond.

Team L. M. W. F. (Harvard, Case Genetics) 

When the Supreme Court issued its ruling in Students for Fair Admissions v Harvard and held that the use of race-conscious admissions programs violates the Equal Protection Clause of the Constitution, the majority opinion rejected the Court’s earlier view found in Bakke, Grutter and Fisher that affirmative action was constitutional. And while these previously issued rulings might be considered complicated concerning both the splintered opinion in Bakke and Grutter’s 25-year time limit that is very prone to interpretation, in Students for Fair Admissions v Harvard the Court invoked two significantly more unambiguous decisions from its past: Brown v Board of Education and Plessy v Ferguson, especially Mr. Justice Harlan’s lone dissent. 

In 1896 the Supreme Court heard arguments in a case called Plessy v Ferguson about whether the Jim Crow era doctrine of ‘separate of equal’, and by extension the Jim Crow laws of the American South that segregated Black and White people from each other, were constitutional. In an 8-1 ruling, the Court stated that separate railcars for Blacks and Whites were equal despite their separateness and that the separateness of the races alone did not constitute a sense of inferiority. The rationale that would be heavily questioned 58 years later. The essential finding of Plessy for a reader from the 21^st century was that the Constitution was not color-blind and that there was constitutional basis for judging people differently according to the color of their skin. It could be said that the decision in Plessy was weaponized by the majority opinion in Harvard to strike a resemblance between it and Bakke, Grutter and Fisher – the Supreme Court rulings that upheld affirmative action in higher education. Justice Harlan’s dissent, however, left the door open for the Roberts Court to cite it to show how “Justice Harlan knew better” than to want to uphold a scheme that gave one racial group an advantage over the other merely on the basis of race.

However, 58 years later in what is nowadays known as one of the most significant landmark cases in the history of the United States Supreme Court, a unanimous panel of the nine justices held that the ruling made in Plessy had to be overturned. In 1954, a case by the name of Brown v Board of Education re-examined whether segregation in public schools and the doctrine of ‘separate but equal’ were still considered constitutional. A Black plaintiff called Oliver Brown challenged the policy of a segregated public schooling system in Topeka, Kansas in a lawsuit that eventually reached the United States Supreme Court. In a turn of events that seemed and eventually was seen as a political rather than a judicial fight, Chief Justice Earl Warren wanted to build a consensus around a single opinion that would end racial segregation once and for all. What followed were two unanimous opinions with no concurring opinions presented, and an assertion that public schools must start admitting children “on a racially nondiscriminatory basis with all deliberate speed”. The irony is that while the decision was one of the first steps in ending segregation and it worked in favor of Black Americans, the decision was later used as a stepping stone for the Court’s current conservative majority to strike down colleges’ affirmative action policies that had also favored Blacks for at least five decades (with Bakke being decided already in 1978). The rationale was that the Constitution was not color-blind only when it benefited Blacks, but that it had to be color-blind no matter what the outcome of that color-blindness would be. Affirmative action was a historical error just like segregation, and one wrong couldn’t be used to remedy the other.

At the end of the day, it didn’t matter what amount of precedent lay between Brown and Students for Fair Admissions v Harvard. Historical errors had to be made right no matter how long that erroneous interpretation had reigned. The parallel was also visible, almost crystal clear, in the majority and concurring opinions: just like Brown corrected the historical error made in Plessy, so was Students for Fair Admissions v Harvard almost compelled to correct the Plessy-echoing errors made in Bakke, Grutter and Fisher.

Team L. M. W. F. (Harvard, Case Genetics)

In the case 303 Creative LLC v Elenis the petitioner Lorie Smith is a christian who intends to expand her business to create wedding websites for couples. However, she claims her religious beliefs prohibit her from creating wedding websites to same-sex-couples, because that would require her to speak a view of marriage that violates her convictions. Colorado’s Anti-discrimination Act (CADA) prohibits her from publishing a statement that she will not create same-sex wedding websites and limiting her services to marriages between a man and a woman. Mrs Smith is suing, arguing that the State is compelling her speech by applying the CADA public accommodation law. There are extensive arguments and argumentation presented in the brief of the petitioner, but I will focus on a few of them I find to be interesting. 

The brief of the petitioner expresses that “everyone agrees that Smith’s websites are speech” (in her opinion pure speech). The basic legal claim of the brief is that the case is a First Amendment free speech case and the petitioner is an artist protected by the constitution. The most significant fact to the petitioner  is that (in their opinion) CADA is compelling speech based on content and censors artists, which  violates the First Amendment. They argue that CADA makes an artist’s speech itself an accommodation and compels the petitioner to speak against her convictions. The petitioner is referred to as an artist opposed to Colorado’s view of the petitioner as an actor in business. 

In the background of the brief, you can see a battle between conservative and liberal ideologies. This is also a wider debate in the USA society, where ideologies collide and the society remains highly polarized on issues. The petitioner is a religious conservative, which plays a huge role in this brief. The petitioner believes that “her creative abilities are a gift that must be used in ways that glorify and honor God”. That is why she cannot promote a concept of marriage that is “not solely the union of one man and one woman”. This case  is to the petitioner  about her freedom of religion and conscience. The petitioner claims that the State has liberal values and she expresses that her (religious) views differ from the state’s ideology and that is why she is being punished. She thinks that the government “stigmatizes her viewpoint as unwelcome”. 

The petitioner creates a very steep contrast between the state and the individual. Reading the brief, you can see a confrontation between government interest and individual rights. It is directly said that there is no government interest. On the other hand Mrs Smith’s religious beliefs and convictions are presented on the opposite side as her important individual rights to decide what messages she conveys. To support the view that Colorado is breaching her rights, the brief of the petitioner attacks the actions of the State of Colorado and its accommodation laws harshly. The petitioner Mrs Smith feels that the state has silenced her voice and is picking ideological winners and losers. CADA is called a “state sponsored censorship” and “coercion”, an “invalid restriction on constitutionally protected speech” and it is described to replace speaker autonomy with the government’s message. I have a page worth of example extracts to insert in this section but I will end with the following quote: this “ highlights the true nature of how Colorado applies CADA: to censor and punish those who express a view on marriage contrary to the State’s own”.  

One can see an attempt to distinguish freedom of conscience (religious freedom) and discrimination from each other in this case. This is also due to differentiating between state interest (preventing discrimination) and individual rights (freedom to choose what messages one will send out). The claim is that everyone agrees that the petitioner does not discriminate against clients based on protected qualities like race, creed, sexual orientation, or gender. However, she will not serve any request to convey a message and to create content that contradicts the truths of the Bible, no matter who the client is. Basically, she “does not discriminate against anyone. She simply claims the constitutional right to exercise autonomy over her own messages” and that is something that the free speech of the First Amendment protects in her view. The petitioner believes that including those messages to her work would make it seem that she regards them as “worthy of presentation and quite possibly of support as well” thus altering and forcing her to speak a message she otherwise would not. 

In conclusion, the brief of the petitioner builds a strong contrast between the government and individual rights. The brief also uses very definitive language like “compel”, “coercion” and “betray their convictions” to accentuate their point. The main point for the petitioner is that Colorado’s action should be regarded as compelled speech and breach of the First Amendment and that the petitioner is regarded as an artist. This is another good case example of the battle between conservatives and liberals in the United States and between individual rights and government interest. This brief showcases those confrontations in an interesting way. 

Team 303 Creative, Case Argumentation Analysis