On 29 June, the conservative-led Supreme Court of the United States (SCOTUS) made yet another groundbreaking decision of great controversy, following the Dobbs decision striking down landmark opinion Roe v Wade, much to the dismay of the liberals. The abolishment of Affirmative Action in college admissions, in this article, will be analysed through its tumultuous history, credited academic and social merits, and elegantly-written Supreme Court opinions.
Image Credit: Harvard Law School - Harvard University
This would be a good time to establish that the bandwidth of the court's rulings does not address military academies, as outlined in a brief footnote of Justice Robert’s opinion in light of military academies not presenting as stakeholders in the case and the “potentially distinct” nature of military academies. He does not elaborate further, as is the case enthusiastic legal spectators have come to begrudgingly accept as the ungiving elaborateness of legal opinions, however still appearing to acknowledge the need for military leadership cadres to reflect the social diversity of rank and file troops serving, fighting and dying in combat.
Affirmative action was first introduced by the administration of President Lyndon Johnson (1963–69) in a bid to uplift African Americans while legislation focused on civil rights reform. Affirmative action policies, such as the prohibition of businesses receiving federal funding in using aptitude tests in employment that tended to discriminate against African Americans, were instituted under the Civil Rights Act of 1964 and part of Executive Order No. 11246.
Academically, affirmative action in college admissions was borne out of a persistent - though evidently slowly decreasing through the decades - Black-and-White gap in the academic field, an apt reflection of the profound difference between the Black and White experience in America, socially, economically, educationally, residentially. Pre-abolishment, the rationale was, given the historic and systemic discrimination against African Americans, that constitutional freedoms alone could not repair centuries' worth of racial subjugation, and that it was society’s moral responsibility to correct and uplift the product of their wrongs.
In a powerful dissent, often described as imperishable, Justice Harlan in a segregation act in Louisiana that allowed the separation of whites and blacks on railroad trains, declared it ungermane towards a legislative end in its potential to create a ‘caste’ system. Although “[t]he white race deems itself to be the dominant race… in prestige, in achievements, in education, in wealth, and in power,” Justice Harlan explained, there is “no superior, dominant, ruling class of citizens” in the eyes of the law. In this context, Justice Harlan thus announced his view that “[o]ur constitution is color-blind.”
Image Credit: New York Times
It was not until half a century after, in the case of Brown v. Board of Education, that Justice Harlan’s ideals were met with action that honoured, in his words, a constitution that “neither knows nor tolerates classes among citizens.”
Brown v Board of Education acted as an anchor case as a prerequisite for most of the court’s discussions. It established the outlawing of racial segregation within campus grounds on the merits of the amendment in the equal protection clause, and the acknowledgement that entrenched racial subjugation failed to recognise the constitutional necessity of a racially integrated society and by extension, racially integrated schools. Where it gets complicated is that Brown, under the court’s view, outlawed any and all forms of differential treatment of students in an academic setting related to race - positive or affirmative, action, as well as negative, or racist discrimination.
This was exactly the defining view that Justice Roberts historically had consistently subscribed to, a blanket ban from any and all forms of racial prejudice. In 2006, Roberts had written, “It is a sordid business, this divvying up us by race.” In 2007, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
Such an axiom of logic, as he had put it, was put to the test in an exchange between Roberts and former solicitor general Seth P. Waxman representing Harvard in Students for Fair Admissions v Harvard.
Chief Justice Roberts posed a hypothetical about a black applicant of affluent background in a wealthy suburb whose parents attended Harvard University and who gets a competitive edge in admissions on the basis of his race. Waxman responded that not every black applicant got such an advantage and cited the evidence about the microscopic size of the advantage, even when an applicant did get a tip because of their race.
The contention between Roberts and Waxman seems to come from a differentiated approach towards looking at the concept of discrimination. As Justice Roberts saw it, rewarding someone, just as it is penalising someone, is a form of discrimination - a reflection of a zero-sum characterisation of college admissions. Waxman however, contends the distinction between invidious discrimination and affirmative action as a societal bane and boon respectively. Waxman’s argument centred around diminishing the importance of race in admissions into but another criterion in the student’s application. For instance, an applicant, just by circumstance, who plays the guitar could gain a competitive edge over their counterparts in a year when the Harvard guitar ensemble lacks guitar players. The notion of minimising race, as observed in Waxman’s argument, perhaps reflected Harvard already.
As laid out in the eloquently written opinion, Roberts asserts that the Harvard and UNC admissions programs proved to be unconstitutional as a consequence of a failure to survive what was described as the “daunting two-step examination” of strict scrutiny, the legal standards when evaluating racial categorisations under the fourteenth amendment: whether the use of race in admissions serves compelling governmental interests, and following it, if it is narrowly tailored enough, or of sufficient necessity to achieve those interests. The goal of Harvard University, as it was argued, to train and serve future leaders in preparation for an increasingly diverse world through learning alongside diverse academic environments, was to Justice Roberts, while commendable, were “not sufficiently coherent” to be “subjected to meaningful judicial review”. This, in his view, the immeasurable standard of Harvard’s focus on diversity undermined the essence of Harvard’s case for affirmative action to be present within admissions.
Additionally, the conservative court took issue with the lack of a sunset clause for affirmative action policies, such that the deviation of treatment, in the interests of all citizens, was but a temporary measure as outlined in Grutter v. Bollinger.
In the minority dissent led by Justice Sotomayer, it was centred around an objection against the subversion of “the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society.” On the backing of the works of authoritative historians, Sotomayer argues that congress has a history of rejecting proposals with a tendency to shrew the equal protection clause of the Fourteenth Amendment into one that was “colour-blind”, and therefore such an assertion was incongruent with a consistent application of the constitution.
Led by their alternative view of the Fourteenth Amendment as a mandate to actively achieve equality amongst all citizens under the rule of law, the liberal minority makes clear that racial differences are not, in fact, grounded in a moment of history but a strong issue of contemporary concern. To that end, indifference or ignorance of race is not an end itself, but animated “theatrical flourishes about colourblindness” which fail to address the bottom line of racial equality of opportunity. Simply put, true equality requires the acknowledgement of inequality.
The dissent also saw to tackle the apparent hypocrisy in Roberts’s exclusion of military academies on the basis that there should be congruency between the racial profiles of leadership cadres and rank-and-file troops. This was, to the liberal minority, as if such that affirmative action only being appropriate by the court if it means preparing underrepresented minorities for combat was a misuse and misrepresentation of the original intentions of the Fourteenth Amendment.
In comparison, for Students for Fair Admissions (SFFA), the plaintiffs of the suit, it is apparent that great emphasis was placed on individual competition and its conception of fairness within potential Harvard students based on evidence of academic achievement. SFFA regarded a position for a student in the College as an individual achievement, a prize completely owned by the applicant, as the Roberts opinion did. For Harvard and similar to arguments made by the Sotomayer dissent, the emphasis was on greater criteria of merit in the application. This would then, undoubtedly pertain to the life experiences of applicants, and to the academic and social benefits of having a broadly diverse student body. Harvard, together with the Sotomayer dissent treated admission as an investment in the student body and in society, for the greater good.
Let's say that the court’s opinion holds and in the future, as it very much might be, that all schools are to be held to race-neutral standards and adopt race-neutral measures. In line with this, in order to promote racially diverse academic settings and boost race-neutral measures, such as de-emphasising test scores or placing emphasis on applicants from lower socioeconomic high schools. Such a move, in a bid to recreate a semblance of what affirmative action was, would surely be held to great scrutiny, calling into question the calibration of significance in college admission criteria. Surely race-neutral policies devised for the outcome of diversity cannot be considered racial discrimination, right?
References
Caplan, L. (2023, July 11). The Supreme Court Affirmative Action Rulings: An analysis. Harvard Magazine. https://www.harvardmagazine.com/2023/06/harvard-affirmative-action-analysis
C-SPAN. (2023). Students for Fair Admission v. President and Fellows of Harvard College Oral Argument. [Video]. Retrieved from https://www.c-span.org/video/?523318-1/students-fair-admission-v-president-fellows-harvard-college-oral-argument
Decker, S. (2022, November 1). Key Exchanges at SCOTUS on Affirmative Action. The Harvard Crimson. Retrieved from https://www.thecrimson.com/article/2022/11/1/key-exchanges-scotus/
Guzman, F. (2023, June 30). The Impact of the Supreme Court's Affirmative Action Decision. WBUR. Retrieved from https://www.wbur.org/news/2023/06/30/impact-supreme-court-affirmative-action
Hauser, C. (2023, June 30). How Affirmative Action Is Working at West Point and the Military Academies. Time. Retrieved from https://time.com/6292620/affirmative-action-west-point-military-academies-supreme-court/
Klapper, J. (2023, June 30). Affirmative Action and the College Admissions Process. Time. Retrieved from https://time.com/6291497/affirmative-action-college-admissions-process/
McWhorter, J. H. (2023). The Supreme Court Is Poised to Reverse Affirmative Action. Here's What You Need to Know. Brookings Institution. Retrieved from https://www.brookings.edu/articles/the-supreme-court-is-poised-to-reverse-affirmative-action-heres-what-you-need-to-know/
Nadworny, E. (2023, June 29). Why the Supreme Court decision on affirmative action matters. NPR. https://www.npr.org/2023/06/29/1176715957/why-the-supreme-court-decision-on-affirmative-action-matters
Students for Fair Admissions v. Harvard. Supreme Court of the United States . (2023, June 29). https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf
Toobin, J. (2023, June 15). After Affirmative Action Ends. The New Yorker. Retrieved from https://www.newyorker.com/news/daily-comment/after-affirmative-action-ends
University of Virginia School of Law. (2023, June). Professor Explains Supreme Court Affirmative Action Decision. UVA Today. Retrieved from https://www.law.virginia.edu/news/202306/professor-explains-supreme-court-affirmative-action-decision
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