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