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 14th 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 13thamendment, 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 14th 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 14th 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