Supreme Court ends affirmative action
Yesterday, the Supreme Court ended the practice of using race-based affirmative action in college admissions. The case sparked a flurry of opinions encompassing 237 pages, including Clarence Thomas’s 58 page concurrence and Justice Sotomayor’s 69 page dissent. The majority held that race-based admissions practices using diversity as their rationale violate the 14th Amendment. It held that the equal protection clause is color blind and its purpose is to promote equality. Justice Robert’s majority opinion noted that race-based admissions is permitted “only within the confines of narrow restrictions.” He stated that such programs have to comply with strict scrutiny and may not use race as a stereotype or in a negative way. He took to task Harvard and UNC for creating admissions criteria and diversity interests that fail both those standards. The majority found that the diversity interests alleged by the colleges (that affirmative action helps create leaders and better educates students in an environment containing diverse outlooks) cannot be subjected to “meaningful judicial review.” The Court noted these interests were imprecise and not measurable.
The Court also criticized affirmative action policies as perpetuating stereotypes based on race. Roberts pointed out that Harvard’s admissions policies assume a Black student can bring something to the school that a White student can’t. In other words, such policies assume that students of the same race “think alike.” The majority was careful to point out that the dissent’s argument that affirmative action should be used to remediate past injustices is not a proper purpose under the 14th Amendment and that similar arguments had been rejected by the Court on multiple previous occasions. According to Roberts, it is not up to the Court to tell litigants when “they have picked the right race to benefit.”
The Court left open the possibility of applicants using their personal history to boost their application. Roberts noted that nothing in the ruling prohibited a university from using an applicant’s personal story of how racism or race has impacted their personal journey to boost their application. Roberts was careful to note that “the student must be treated based on his or her experiences as an individual—not on the basis of race.”
While Roberts’ majority opinion is written in his typical eloquent blandness, Justice Thomas pulled no punches in his concurring opinion. Unlike Roberts, Thomas has a propensity to ramble and he quotes his prior opinions at length. Yet he strikes an emotional chord that is not commonly seen in Supreme Court opinions. First, Thomas lays out the history behind the 14th Amendment and concludes it was intended to equalize the rights of citizens with Whites, not create remedial rights and actions. He writes, “All citizens of the United States, regardless of their skin color, are equal before the law.” He rejected the dissent’s view that the 14th Amendment only forbids laws that “hurt, but not help,” Blacks.
Next, Thomas argues that Harvard and UNC failed to explain the link between racial diversity and education. He notes that the Court should not accept the universities’ self-professed benign motives since race-based admissions policies were used in the past to discriminate against several classes of individuals to promote discredited theories of eugenics. He notes that “the university respondents’ histories hardly recommend them as trustworthy arbiters of whether racial discrimination is necessary to achieve educational goals.” Thomas counsels agains the use of race based criteria to promote allegedly helpful motives, “Anyone who today thinks that some form of racial discrimination will prove “helpful” should thus tread cautiously, lest racial discriminators succeed (as they once did) in using such language to disguise more invidious motives.”
The best part of Thomas’s concurrence is his analysis of the alleged benefits of affirmative action. Unlike the majority opinion, Thomas digs deep into the numbers to show that affirmative action plans have had unintended consequences. For example he points out that many Black students are often placed in institutions where “underperformance is all but inevitable,” given their academic track record. He also alleges affirmative action policies stamp the accomplishments of Black and Latino students “with a badge of inferiority.” He also notes that such policies often reward the most well off racial minorities without helping those who “struggle with real hardship.” He also calls out the dissent for “defying mathematics” by claiming that affirmative action policies increase the chances for admission of one group without simultaneously decreasing the chances of others.
Thomas also criticizes the social impact of affirmative action policies. He writes, “these policies appear to be leading to a world in which everyone is defined by their skin color, demanding ever-increasing entitlements and preferences on that basis. Not only is that exactly the kind of factionalism that the Constitution was meant to safeguard against, see The Federalist No. 10, but it is a factionalism based on ever-shifting sands.” He criticizes the policies for “stripping people of their individuality” and undermining the “very diversity” that the univeristies claim to seek.
Thomas reserved his harshest criticism for the dissent of fellow justice, Ketanji Brown-Jackson. She wrote in dissent that because of racial disparities in many walks of life, affirmative action policies are necessary to “level the playing field.” She links the ills of slavery to many aspects of Black life that locks Blacks into an inferior caste. Thomas counters that none of her statistics are capable of showing a causal link between race and individual outcomes. He castigates Jackson for casting all Blacks as “victims,” noting “her desire to do so is unfathomable to me.” He concludes by assailing Jackson’s world view: “Individuals are the sum of their unique experiences, challenges, and accomplishments. What matters is not the barriers they face, but how they choose to confront them. And their race is not to blame for everything—good or bad—that happens in their lives. A contrary, myopic world view based on individuals’ skin color to the total exclusion of their personal choices is nothing short of racial determinism.”
This opinion highlights the deep division between Justices Thomas and Brown-Jackson as well as that in society in general. The opinion has already sparked editorials equating this opinion’s assertion of “color blind equality” with Plessy vs Ferguson‘s declaration of “separate but equal.” The real question of course is how college admissions changes, if at all, in response to this decision. My fear is that applicants will be counseled to harp on Justice Robert’s individual experience language and will play up how race has impacted their lives in their personal essays. This means personal stories, not grade point averages, will have more of an impact on who gets admitted. College admissions will become even more subjective than it already is as a result. The decision may also force colleges to use income and socioeconomic status as a determinant. This could be a double-edged sword. It will help students get considered who otherwise would not have a shot at getting into an elite college but will also heighten fears of mismatch. Students from lower socioeconomic brackets typically are less well-prepared to succeed in elite institutions. Will grades be lower and drop-out rates higher of some minority groups as a result of this change? Only time will tell.
