Banning Affirmative Action: Legal Crossroads in Higher Education Admissions

Affirmative action policy in higher education has been the center of extensive debates, drawing in both passionate advocates and critics who significantly influence discussions on college admissions policies. Consider a scenario where two equally-qualified students, distinguished by their racial background, compete for a coveted spot in a prestigious university. While one might assume that this situation leads to a fair evaluation of both individuals, affirmative action introduces a unique dimension by providing an advantage to a student from a marginalized community. This fact sparks controversy, raising questions about whether affirmative action effectively achieves its intended goals of promoting diversity and addressing historical inequalities or if it establishes an admissions standard that unfairly impacts certain students more than it benefits others.

While affirmative action aims to rectify historical injustices and foster a more inclusive academic environment, some contend that pursuing diversity may overshadow considerations of merit. For instance, the Harvard University Class of 2026 witnessed a notable increase, with over 15% of students identifying as African American, nearly double the figures from previous years. [1] Experts from the National Health Service posit that these rising numbers may not necessarily reflect improvements in academic disparities but rather indicate a university initiative to enhance diversity, potentially at the expense of certain racial groups. [2] This trend raises concerns about the necessity and effectiveness of such measures in university admissions.

In 2022, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA v. Harvard) emerged as a pivotal moment in the affirmative action discussion. [3] The decision challenged established legal precedents by citing important statistical and legal underpinnings on why previous rulings must be overturned. Reversing prior decisions that laid the groundwork for current affirmative action policies signifies a crucial and overdue transformation in the legal landscape surrounding this policy. The reversal not only compels educational institutions to reconsider their approaches to admissions, but also imposes a mandate for thorough evaluation and action on existing policies. SFFA v. Harvard prompts a reexamination of the delicate balance between fostering diversity and ensuring fairness in the admission process.

Chief Justice John Roberts’ majority opinion delves into the complexities of the Harvard case, presenting a nuanced view on how race shapes the admissions process. Chief Justice Roberts argues that the Constitution permits considerations of the race of each applicant as a singular factor in the admissions process. [4] He emphasizes the court's perspective that while race is a factor in admissions decisions, it is not the sole determinant. Rather, race contributes to a personalized, holistic assessment of each applicant.

Moreover, the majority opinion emphasizes the educational advantages stemming from a diverse student body, asserting that diversity enriches the learning environment by promoting understanding and mitigating prejudice. [5] This acknowledgment indicates that the Court recognizes the positive effects of diversity on the comprehensive educational experience and underscores the role affirmative action plays in cultivating such diversity. Despite the Court’s acknowledgment of the advantages of diversity, debates surrounding the efficacy and potential downsides of affirmative action in achieving these goals persist.

Chief Justice Roberts’ opinion takes a significant turn by challenging Harvard's admissions program, asserting that it violates the Fourteenth Amendment’s Equal Protection Clause. Chief Justice Roberts, writing for the 6-3 majority, provides a comprehensive analysis. He explores the historical context of the Equal Protection Clause, acknowledging past failures in upholding an equal application of laws, notably in Plessy v. Ferguson, where the Court determined that “separate but equal” across racial groups was lawful. His opinion in SFFA v. Harvard effectively draws from precedent cases, including Brown v. Board of Education, which ended segregation in the U.S. school system, to establish the standard of "strict scrutiny" for any exceptions to equal protection. [6] The strict scrutiny standard necessitates that the government demonstrate a compelling interest and show that the racial classification is narrowly tailored to achieve that interest. [7]

Building on this legal history, the majority opinion references Justice Lewis Powell's viewpoint in Regents of the University of California v. Bakke (1978), where diversity is recognized as a compelling state interest, but race should only be a "plus" in admissions, not a quota [8]. In this case, Bakke, a student applying to the University of California, faced rejection both times he applied. Notably, 16 of the 100 seats were allocated to qualified minorities, and despite outperforming all 16 admitted minority students, Bakke was denied admission both years he applied. [9]

Grutter v. Bollinger (2003), another case cited in the opinion, further refined this perspective, establishing limits to prevent stereotyping or harm to non-minority applicants and foreshadowing a future end to race-based admissions. [10] Chief Justice Roberts asserts that the conclusion drawn from cases like Bakke and Grutter aligns with the belief that race-based admissions should eventually come to an end. The Court emphasizes a framework where diversity is acknowledged as a compelling state interest, but simultaneously underscores that race should not serve as the sole determinant in admissions. Rather, it is presented as one among many factors contributing to a holistic assessment.

Chief Justice Roberts' position reflects a broader sentiment that even opinions from the past, including those from individuals who may not share his beliefs, suggest a shift away from race-based affirmative action. [11] The emphasis on the need to eventually terminate race-based admissions aligns with the Court's commitment to the principle that laws should apply equally to everyone, regardless of race.

The majority opinion ultimately contends that Harvard's race-based admissions system fails to meet the strict scrutiny, non-stereotyping, and termination criteria established in Grutter and Bakke. Harvard could not demonstrate their compelling interests measurably, failed to avoid racial stereotypes, and lacked a logical endpoint for when race-based admissions would cease. As a result, the Court reasonably deemed these programs as violations of the Fourteenth Amendment’s Equal Protection Clause.

Justice Clarence Thomas, known for his strict constitutional interpretation, offers a robust historical analysis in his concurrence. He argues that the original understanding of the Equal Protection Clause did not condone racial discrimination, challenging the Court's deviation from this principle exemplified in Plessy.

Continuing the critique, Justice Thomas delves into the compromise outlined in Bakke. He notes that while diversity serves a compelling state interest, diversity through affirmative action policies sow the seeds for perpetuating race-based admissions, which is contrary to the original intent of the Equal Protection Clause. [12] Race-based admissions have undeniably contributed to increased diversity on university campuses. However, Justice Thomas’ perspective highlights a fundamental contradiction. The Equal Protection Clause was designed to prevent race-based distinctions, which creates a tension between the pursuit of diversity and the adherence to race-blind protection under the law.

Justice Neil Gorsuch aligns with Justice Thomas's concerns and draws parallels with the historical failures in Plessy. He underscores the transformative nature of Brown v. Board of Education, characterizing it as a necessary correction to the flawed precedent of "separate but equal." Justice Gorsuch bluntly states, "Plessy was wrong the day it was decided, and Brown is right." [13] He, agreeing with his fellow justices, acknowledges the historical error of "separate but equal," a precedent that perpetuated segregation. Citing the transformative nature of Brown, Justice Gorsuch sets a precedent for the potential overturning of affirmative action. He argues that removing affirmative action is not a failure akin to Plessy but a step forward, aligning with the corrective trajectory established by Brown.

Justice Gorsuch also scrutinizes the practical implications of Justice Lewis Powell's differentiation between diversity as a compelling state interest and race as a mere "plus" factor in admissions. He critically observes the potential for race-based admissions to perpetuate stereotypes and harm non-minority applicants. Any involvement of race in the admissions process opens the door to make race-based decisions. Consequently, as Justice Thomas asserts, these decisions run counter to the Equal Protection Clause.

Justice Brett Kavanaugh also contributes to this opinion by emphasizing the need for a clear and stringent standard in evaluating the constitutionality of race-based admissions. Drawing from the strict scrutiny standard articulated in Bakke and Grutter, Justice Kavanaugh reaffirms that any exception to equal protection must satisfy a compelling state interest and be narrowly tailored to achieve that interest. Race-based admission policies, however, create misalignment when applying equal standards rather than promoting fairness, which negatively affects certain minority groups.

Justice Thomas's historical lens, Justice Gorsuch's call for correction, and Justice Kavanaugh's insistence on a rigorous standard collectively form a compelling legal narrative against affirmative action in higher education. Nonetheless, Justice Sonia Sotomayor and Justice Ketanji Jackson, present a compelling counterargument to the majority's stance in their dissents. They emphasize the continued relevance of affirmative action in addressing contemporary challenges and promoting diversity, challenging the majority's interpretation of equal protection and strict scrutiny.

Justice Sotomayor, in her dissent, passionately defends affirmative action and challenges the majority's assertion that Harvard's admissions process violates the Equal Protection Clause. She contends that race-conscious admissions are necessary to address the lingering effects of systemic discrimination and to promote equal opportunity.

Firstly, Justice Sotomayor disputes the majority's reliance on the original understanding of the Fourteenth Amendment, arguing that it fails to account for the evolving understanding of equality and justice. [14] She argues that a strict race-blind approach overlooks the ongoing disparities faced by minority communities and undermines the Court's role in fostering a more inclusive society. While considering context is crucial in race-related decisions, emphasizing discrimination and disparities within minority communities decades after the establishment of equality laws, especially when disparities are now more linked to economic standing than race, appears to be an unreasonable assertion. [15]

Additionally, Justice Sotomayor addresses the historical context, pointing to the Court's acknowledgment in Bakke and Grutter that diversity is a compelling state interest. Sotomayor emphasizes how the majority's refusal to recognize the ongoing discrimination is at odds with our precedents recognizing the value of diversity in higher education. [16] She argues that Harvard's holistic admissions process, which considers race as one of many factors, aligns with the principles set forth in previous precedents. To counter Justice Thomas's historical perspective, Justice Sotomayor emphasizes the continued need for affirmative action to address present-day inequalities. She contends that the strict scrutiny standard should not detract from the university's efforts to create a diverse and inclusive learning environment. [17] Justice Sotomayor continuously focuses on diversity’s benefits in college admissions without acknowledging that fostering diversity should not come at the expense of academic achievement.

Justice Jackson, in a concurring dissent, focuses on the practical implications of overturning Harvard's admissions policy. Justice Jackson argues that affirmative action has proven effective in remedying past injustices and promoting diversity. [18] Justice Jackson’s emphasis on the tangible benefits of a diverse student body fails to address the root cause of inequality in access to lower education, particularly among certain communities. [19] While diversity is a noble goal, using a race-based admissions process to achieve it doesn't remedy past injustices but rather perpetuates inequalities rooted in economic disadvantage. Race-based admissions exacerbate injustice by neglecting underlying economic inequalities. As long as race-based admissions persist, these economic disparities will persist, hindering the path to higher education for those who already face obstacles in their early education.

In response to the majority's emphasis on race-blindness, Justice Jackson asserts the need for a nuanced approach that recognizes the complexities of systemic inequality. She argues that affirmative action is a constitutional means to rectify historical injustices and build a more equitable society. [20] However, relying on diversity as the primary argument overlooks evolving educational disparities. In a world where educational inequalities are worsening, it is crucial to address the problem’s root. Attempting to rectify historical issues that were addressed decades ago may not effectively address the current challenges and emerging disparities in the educational system. As suggested by Justice Gorsuch, a more forward-looking and comprehensive approach is needed to ensure that solutions align with the contemporary realities of educational access and opportunities.

Students for Fair Admissions, Inc. v. President and Fellows of Harvard College has brought to light the intricate legal considerations surrounding affirmative action in higher education. The majority opinion asserts that Harvard's race-conscious admissions process violates the Equal Protection Clause, setting the stage for a renewed examination of how affirmative action affects student demographics. Chief Justice Roberts’ argument for the majority, grounded in a strict scrutiny analysis, highlights the historical context of the Equal Protection Clause and its evolution through landmark cases such as Plessy v. Ferguson, Brown v. Board of Education, Regents of the University of California v. Bakke, and Grutter v. Bollinger. The majority opinion further cites the Court's commitment to race-blindness and the principle that laws should apply equally to everyone, regardless of race, to affirm its stance. It challenges the need for race-conscious admissions policies, asserting that they are not narrowly tailored to achieve a compelling interest. Chief Justice Roberts, thus, contends that Harvard's admissions program fails to meet the strict scrutiny, non-stereotyping, and termination criteria established by legal precedent and the Court’s own commitment to equality. This decision signifies a departure from the previous acceptance of diversity as a compelling state interest, as articulated in Bakke and Grutter. 

Contrarily, Justices Sonia Sotomayor and Ketanji Jackson, in their passionate dissents, argue that affirmative action is a necessary tool to address ongoing discrimination and promote diversity. They challenge the majority's strict scrutiny analysis, emphasizing the practical benefits of a diverse student body and the continued relevance of affirmative action in fostering a more inclusive society.

In the aftermath of this decision, the legal landscape surrounding affirmative action is poised for transformative change. While schools may undergo a shift towards more uniform admission standards across races, potentially resulting in a decrease in diversity, the majority's opinion establishes a precedent for a race-blind approach to admissions. This underscores the need for comprehensive reform in every aspect of education. In the coming years, the U.S. education system will undergo a critical reevaluation of its policies and practices to ensure equal opportunities for everyone, irrespective of their race, socioeconomic status, or geographic location.

Edited by Andrea Ruiz

[1] Jane Nam, "Affirmative Action Statistics in College Admissions," BestColleges, July 3, 2023, https://www.bestcolleges.com/research/affirmative-action-statistics.

[2] Tienda, M. "Diversity ≠ Inclusion: Promoting Integration in Higher Education." Education Research, vol. 42, no. 9, 2013, pp. 467-475. doi:10.3102/0013189X13516164. PMID: 26269658; PMCID: PMC4530621.

[3] Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U. S. 1-8 (2023)

[4] Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U. S. 11 (2023)

[5] Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U. S. 41 (2023)

[6] Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U. S. 34 (2023)

[7] Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U. S. 43 (2023)

[8] Regents of the University of California v. Bakke, 438 U.S. 265 (1978)

[9] Regents of University of California v. Bakke, 438 U.S. 265 (1978)

[10] Grutter v. Bollinger, 539 U. S. 306 (2003)

[11] Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U. S. 38  (2023)

[12] Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 50 (2023)

[13] Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 60 (2023)

[14] Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 150 (2023)

[15] Richard Kahlenberg, "Affirmative Action Should Be Based on Class, Not Race," The Economist, September 4, 2018, https://www.economist.com/open-future/2018/09/04/affirmative-action-should-be-based-on-class-not-race.

[16] Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U. S. 189 (2023 

[17] Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U. S. 206-208 (2023)

[18] Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U. S. 210 (2023)

[19] Kahlenberg, "Affirmative Action"

[20] Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U. S. 236, 237 (2023)