Supreme Court Invalidates Race-Based College Admissions Practices Effectively Ending Affirmative Action

The U.S. Supreme Court, by a 6-3 vote, has held that it is unconstitutional and illegal for state universities or federally funded private universities to base their admissions policies on the race of the student applicants. The ACLJ filed an amicus brief urging this result.

In Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina (decided together), the Court, in an opinion by Chief Justice Roberts, explained how racial preferences permeated the admissions process at these two schools. For example, at Harvard:

Every application is initially screened by a “first reader,” who assigns scores in six categories: academic, extracurricular, athletic, school support, personal, and overall. . . . In assigning the overall rating, the first readers “can and do take an applicant’s race into account.”

Once the first read process is complete, Harvard convenes admissions subcommittees. The subcommittees are responsible for making recommendations to the full admissions committee. The subcommittees can and do take an applicant’s race into account when making their recommendations.

The next step of the Harvard process is the full committee meeting. . . . At the beginning of the meeting, the committee discusses the relative breakdown of applicants by race. The “goal,” according to Harvard’s director of admissions, “is to make sure that [Harvard does] not hav[e] a dramatic drop-off ” in minority admissions from the prior class. . . . At the end of the full committee meeting, the racial composition of the pool of tentatively admitted students is disclosed to the committee.

The final stage of Harvard’s process is called the “lop,” during which the list of tentatively admitted students is winnowed further to arrive at the final class. Any applicants that Harvard considers cutting at this stage are placed on a “lop list,” which contains only four pieces of information: legacy status, recruited athlete status, financial aid eligibility, and race. The full committee decides as a group which students to lop. In doing so, the committee can and does take race into account. Once the lop process is complete, Harvard’s admitted class is set. In the Harvard admissions process, “race is a determinative tip for” a significant percentage “of all admitted African American and Hispanic applicants.”

Students for Fair Admissions (SFFA) filed separate lawsuits challenging Harvard’s and UNC’s use of race in making admissions decisions. SFFA contended that the racial preferences at both schools necessarily disfavored other racial groups, especially Asian Americans. The federal trial courts ruled against SFFA in both cases, and a federal appeals court affirmed the ruling in favor of Harvard. The Supreme Court then granted review of both cases. (While not typical, the Court sometimes reviews cases that have not yet been decided in the federal appeals court. That is what happened here with the UNC case.)

When the Supreme Court agreed to hear these cases, the ACLJ submitted an amicus brief on behalf of the ACLJ and Devon Westhill, former Deputy Assistant Secretary for Civil Rights in the U.S. Department of Agriculture. Approaching the case from the angle of the inherent dignity of all humans, we argued:

There is only one “race” of people – the human race. Institutional efforts to pigeonhole groups of people into racial boxes – what Chief Justice Roberts called a “sordid business,” LULAC v. Perry, 548 U.S. 399, 511 (2006) . . . – is both ultimately incoherent (as people of mixed ethnicity illustrate) and a hallmark of racism (as with the Nazi efforts to define Jews and the segregationist efforts to define “colored” people). The use of racial labeling by Harvard and UNC is incompatible with one of the basic premises of the Constitution and our Nation: the inherent, equal dignity of all persons.

Happily, the Supreme Court agreed. As the majority stated (p. 29), race classifications “demean the dignity and worth of a person.”

The ACLJ amicus brief focused on two main points. First, that racial categories are “arbitrary and ultimately incoherent.”

Countless children are born each day with a heritage drawing upon a host of varied ethnic and cultural backgrounds. “As racial and ethnic prejudice recedes, more and more students will have parents (or grandparents) who fall into more than one of [the designated racial] groups.” Fisher v. University of Texas, 136 S. Ct. 2198, 2229 (2016) (Fisher II) (Alito, J., dissenting). That is exactly what is happening. Nicholas Jones, et al., “2020 Census Illuminates Racial and Ethnic Composition of the Country,” Census.gov (Aug. 12, 2021) (“Multiracial population . . . was measured at 9 million people in 2010 and is now 33.8 million people in 2020, a 276% increase”). Indeed, there are websites devoted to identifying and celebrating such “multiracial” individuals.

Quoting a federal appeals court judge, we noted: “‘The idea of dividing people along racial lines is artificial and antiquated. Human beings are not divisible biologically into any set number of races.’”

“To be sure,” we added, “individuals can take great pride in asserting – or recharacterizing – their own ethnic identities, whether Irish, African-American, Italian, Chinese, or what have you. But it is an entirely different matter to have an institution attach consequences to such a label, whatever its source.”

In the SFFA ruling, several Justices picked up on this same theme. The Court majority agreed (p. 25) that racial categories are “imprecise,” “arbitrary or undefined,” and “opaque.” Justice Thomas, concurring, declared (p. 47) racial categories to be “ephemeral, socially constructed,” and “artificial.” Justice Gorsuch, also concurring, called (p. 7) racial lines “incoherent.”

And rightly so! As we highlighted in our second main point of our amicus brief, past attempts to pigeonhole humans into racial boxes have not just been colossal failures, but have had terrible consequences. The horrific, lethal example of Nazi Germany and its formula for identifying who is Jewish, which we cited, is all too familiar. We pointed out that the Rwanda massacre of 1994 also entailed the labeling of people as either Hutu (safe) or Tutsi (subject to slaughter). Closer to home, the track record of racial classification under segregationist rules in the United States – which we documented at length – were “appallingly racist and insensitive to the fundamental humanity of all persons, regardless of skin color, features, or ancestry.” These rules, embraced even by the Supreme Court itself, shamefully targeted various racial minorities for second-class treatment.

Thankfully, the Supreme Court has adopted – and vindicated – Justice Harlan’s famous dissent in the separate-but-equal case of Plessy v. Ferguson:

[I]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.

As Chief Justice Roberts put it (p. 15), “Eliminating racial discrimination means eliminating all of it.”

One more important note: ACLJ Senior Counsel and Director of Policy Harry G. Hutchison (co-author of the ACLJ amicus brief) previously wrote about this case, warning against the dangers of trendy ideologies (like CRT and DEI) that impose ongoing victimhood status on racial minorities. That victimhood narrative lies behind the argument that past race discrimination justifies current race discrimination (in college admissions and elsewhere). In his concurrence in SFFA, Justice Thomas, wise to this concern, forcefully rejects the notion that past wrongs inflicted on prior generations justify inflicting discriminatory harms on today’s students:

Whatever their skin color, today’s youth simply are not responsible for instituting the segregation of the 20th century, and they do not shoulder the moral debts of their ancestors. Our Nation should not punish today’s youth for the sins of the past.

Indeed, an attempt to repair historic harms would not be limited to racial minorities. Religious groups of various sorts (Catholics, Jews, different Christian denominations, etc.) and a variety of ethnic groups (Irish, Italians, Chinese, Japanese, etc.) have all faced injustice in this country. Sorting out and trying to right the wrongs of past decades, centuries, and even millennia is an impossible task – and who would we trust to get it right other than God Himself? Certainly not bureaucrats or politicians!

The Supreme Court has struck a strong blow for equality. For that we should all be grateful.

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