I agree with the U.S. Supreme Court’s 2023 ruling in Students for Fair Admissions v. Harvard, which in essence ended race conscious admissions/affirmative action in higher education.
Students for Fair Admissions v. Harvard (SFFA) changed the college application landscape. To understand and evaluate the merits and impacts of this landmark decision, it’s important to review the judicial context and established precedents. SFFA was the correct ruling on both a judicial interpretation perspective as well as on the basis of effective public policy, and supporting education equality is not mutually exclusive to affirmative action.
Following the passage of the 14th Amendment, the Court erroneously applied the Equal Protection Clause in Plessy v. Ferguson and ushered in the “separate but equal” delusion that gripped America for far too long. Decades later, the Court rectified its mistake and struck down segregation through Brown v. Board of Education and other related decisions.
These continued rulings led to the idea that the Equal Protection Clause applies “without regard to any differences of race, of color, or of nationality”—it is “universal in [its] application.” [1] Exceptions to this rule would only be after withstanding “strict scrutiny” [2] that first asks whether there are “compelling governmental interests,” [3] and second, if the exception is “narrowly tailored” or “necessary” [4].
Race-conscious college admissions were directly considered in 1978 through Regents of Univ. of California v. Bakke and the ruling provided fragmentary opinions. Justice Powell’s views, which recognized the real interests of having a diverse student body but expected limits on universities’ use of this tactic, were later enshrined into true precedent in 2003 through Grutter v. Bollinger [5]. The Court here as well clearly recognized the conflict over race conscious admissions when they said, “[e]nshrining a permanent justification for racial preferences would offend” the intent of the Equal Protection Clause [5]. Additionally, they included this profound assertion, “The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today. [5]”
Rarely do courts issue such an unambiguous sunset to precedence. The Roberts Court, aware of this sunset, took up the case of SFFA roughly 20 years after Grutter v. Bollinger. The majority opinion cited Harvard admissions’ failure to withstand “strict scrutiny”. Without standards to rule on concerning what a properly diverse student body should constitute, or what the measurable standard of effect should be of a given diverse student body, and finding evidence that Harvard admissions created a “negative” in racial consideration for Asian students, the court rightfully ended the practice [6].
In reviewing the court’s reasoning for this decision, I believe it’s appropriate and unsurprising given the history of this discussion. Now, simply because a court’s decision is plausible, does not guarantee it is appropriate. The existence of Plessy v. Ferguson cited earlier proves that the Court can err. So, was the Grutter opinion truly correct in that 25 years from now race conscious admissions would no longer be necessary? The difficult part, and what the Court hits on accurately, is there is no agreed upon standard as to what would dictate the practices’ necessity. Certainly, the country has made strides in terms of racial equality and access to opportunity. But racism still does exist. How do you determine that enough has been done?
Additionally, the difficulty of not having a set standard for diversity is permissive in all aspects of college admissions and could create difficult dialogue if it were to be considered anew. For instance, admissions and enrollment by men in college have been declining for several years [7], as has completion compared to women [8]. Now, if the time series was extended to the past, men had outpaced women in education for a long time. So should parity between genders not be considered? I don’t think so, and neither do many higher educational institutions. A foundational book on this issue is Of Boys and Men: Why the Modern Male Is Struggling, Why It Matters, and What to Do About It. In fact, colleges can increase their enrollment of Blacks and Hispanics by targeting and increasing male enrollment.
Affirmative action had real, tangible goals that were needed because of our country’s unfair treatment and exploitation of minorities, particularly African Americans. Yet in considering diversity, the Court decision was permissible because of the lack of a set standard for diversity. SFFA’s main impetus was the “negative” consideration that Asian American students received. In this, I believe that improving education equality is not confined solely to affirmative action. Other policy opportunities can be just as beneficial to minorities.
Critics have pointed towards Harvard’s most recent enrollment data, with a decrease in Black students and an increase in Asian students, as evidence of the need for affirmative action. But this was also the first year following the pandemic that Harvard admissions’ required standardized test scores [9]. With this in mind, should it really be that certain students have a particular consideration, or more so that our society must do better to provide resources to those less fortunate?
There is large talk of a class-based “affirmative action” that supports all who need it while also supporting goals of racial equality given the de facto poverty levels among Black and Hispanic Americans [10]. It should also be noted that the Court was aware of the complexity of equality in education, with the majority opinion noting that, “nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life... tied to a quality of character or unique ability that the particular applicant can contribute…[6]”
Supporting Black and Hispanic students through affirmative action has been at the whims of the courts for decades, but sometimes courts are not the best places to decide complex policy. President Dallin H. Oaks, speaking on another legal topic, said, “What is needed is…a body of wise public policy. Courts are constitutionally limited to resolving the specific cases before them. They are ill-suited to resolving the overarching, complex, and comprehensive policy-making that is required when there are conflicts between various great values in a pluralistic society [11].” Ultimately, SFFA was the correct decision for all students, and policy options can still be explored to support education equality and minorities in respectable ways.
