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Updated June 30, 2023, at 12:38 a.m.
The Supreme Court ruled against Harvard and the University of North Carolina in a landmark decision Thursday morning, radically restricting the consideration of race in college admissions.
In a 40-page opinion authored by Chief Justice John Roberts ’76, all six members of the Court’s conservative wing ruled that Harvard’s and UNC’s admissions programs violated the Equal Protection Clause of the 14th Amendment.
The Equal Protection Clause of the Fourteenth Amendment states that all U.S. citizens must receive “equal protection of the laws” and that their “privileges or immunities” cannot be curtailed without due process of law.
Students for Fair Admissions, the group that first sued Harvard in 2014, had filed a separate lawsuit against UNC — but the Supreme Court issued one ruling for both cases.
Associate Justice Ketanji Brown Jackson ’92 did not participate in any part of the Harvard case, having recused herself due to her former position on the Board of Overseers, the University’s second-highest governing body. She authored a dissent in the UNC case.
Students for Fair Admissions — the anti-affirmative action group that sued Harvard and UNC in 2014 — had asked the Supreme Court to overturn Grutter v. Bollinger, its landmark 2003 decision that preserved race-conscious admissions.
But the Supreme Court did not go that far.
Instead, the Court ruled that Harvard’s and UNC’s admissions policies did not satisfy “strict scrutiny” — the most stringent standard of judicial review that all exceptions to the Equal Protection Clause must pass.
Roberts wrote that while the stated goals of Harvard’s and UNC’s admissions policies are “commendable” including exposing students to diverse outlooks and “training future leaders,” these are “not sufficiently coherent for purposes of strict scrutiny.”
Per Richard H. Sander ’78 — a law professor at the University of California, Los Angeles — the “thrust of the decision” was not to say that “earlier courts were wrong” but that “earlier courts tried to give universities assurance and universities were abusing the system so we’re just going to stop it.”
“I was surprised that they didn’t explicitly overrule Grutter — for example — but after reading it, I thought it was a smart choice on their part,” Sander said, calling the opinion “very well crafted.”
Richard T. Ford, a professor at Stanford Law School, said he found it “interesting” that the Supreme Court “seemed to want to avoid acknowledging” whether or not Grutter had been overruled, making it appear — from Ford’s perspective — “that they wanted to make this look less radical than it really is.”
“Justice Roberts — and then also when one looks at Justice Kavanaugh’s concurrence — went to great pains to claim that they weren’t overruling their past precedents and instead were just applying them,” Ford said. “Now, that’s quite odd because — of course — the past precedents allowed for the use of race in affirmative action and this opinion appears to foreclose the use of race in affirmative action.”
Roberts added that the admissions programs in use by the two schools “also fail to comply with the Equal Protection Clause’s twin commands” and that they “require stereotyping — the very thing Grutter foreswore.”
In a significant caveat, Roberts wrote “nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life.”
However this usage of race, it continued, must be “concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university.”
Harvard Law School professor emeritus Alan M. Dershowitz said he found it “surprising” that the Supreme Court “left open a little tiny loophole” through this caveat.
“If that paragraph is applied correctly, it won’t create a loophole but it invites applicants to disclose their race and to emphasize what impact their race may have had on their development,” he said. “That could easily be misused and exploited.”
University of California, Berkeley Law School Dean Erwin Chemerinsky also expressed surprise that the Supreme Court chose to include this statement.
“This does leave open the door to considering race in the extent to which it affects the evaluation of a person,” he said.“I don’t know how the Court’s going to draw a distinction between when race is impermissible and when race is permissible.”
“I think colleges, universities are going to look for other proxies for race,” Chemerinsky added. “What they’ll be able to do and what the courts will say no to is going to be left for future litigation.”
Harvard Law School professor Jeannie Suk Gersen said the Court’s decision left her feeling “not quite certain” of “what to make” of the idea of using proxies for race in college admissions.
“Many, many things can be correlated with race or used in a way that makes it seem like what the university is trying to do is play around with its racial composition,” Gersen said. “It will be very, very difficult for plaintiffs after this case to prove that.”
Gersen said she expects admissions officers to search for other ways to prioritize student body diversity, such as by geographical area and socioeconomic status.
“The fact that they’re correlated with race may end up bringing on lawsuits, but I am predicting that those lawsuits will not be particularly successful,” she added.
The opinion invoked Brown v. Board of Education, the landmark Supreme Court decision that struck down segregation in American schools.
The decisions in Brown and similar cases, Roberts wrote, “reflect the ‘core purpose’ of the Equal Protection Clause” — the constitutional provision that the Court found Harvard’s and UNC’s admissions programs violated.
In an echo of his opinion in a 2007 case on race-based admissions at a Seattle high school — where Roberts wrote that “the only way to stop discriminating on the basis of race is to stop discriminating on the basis of race” — the Chief Justice wrote that “eliminating racial discrimination means eliminating all of it.”
Thursday's majority opinion referenced the precedent set in Grutter, which stated that universities would no longer need to use race in their college admissions programs after 25 years: “Twenty years later, no end is in sight.”
Though Harvard’s and UNC’s admissions systems are “well intentioned and implemented in good faith,” the Court found that the universities’ programs fail the criteria for strict scrutiny.
In a crucial footnote, Roberts acknowledged Solicitor General Elizabeth B. Prelogar’s argument that affirmative action in military academies is vital to national security, but noted that none of those schools’ policies are at question in this case.
“This opinion also does not address the issue, in light of the potentially distinct interests that military academies may present,” Roberts wrote.
Sander — the UCLA law professor — said that he interpreted the choice to make the military academies an exception to Thursday’s decision as a holdover from the majority opinion in Grutter, which recognized the argument that national security benefits from “a more racially diverse officer corps.”
According to Gersen — the Harvard Law School professor — the exclusion of military academies from the decision “pretty much invites a lawsuit — specifically about military academies and affirmative action — which surely we will see in the future.”
“I don’t see this opinion as saying, ‘If you’re a military academy, you’re in the clear and you can keep doing it — you can keep using affirmative action,’” Gersen said. “I think what it is saying is ‘We’re not saying right now that you can’t use it.’”
Roberts continued that Harvard’s and UNC’s stated interests in a diverse student body “cannot be subjected to meaningful judicial review.”
“How many fewer leaders Harvard would create without racial preferences, or how much poorer the education at Harvard would be, are inquiries no court could resolve,” the Chief Justice wrote.
Roberts criticized Harvard and UNC for considering Asian American applicants as a single group, writing that by doing so, the schools “are apparently uninterested in whether South Asian or East Asian students are adequately represented, so long as there is enough of one to compensate for a lack of the other.”
Conceding that past decisions have given universities latitude in how to run their affairs, Roberts wrote that, nonetheless, “we have been unmistakably clear that any deference must exist ‘within constitutionally prescribed limits.’”
“Universities may define their missions as they see fit. The Constitution defines ours,” the Chief Justice wrote.
Roberts wrote that Harvard’s and UNC’s race-based admissions programs engage in “stereotyping” as they see an “inherent benefit in race qua race — in race for race’s sake.”
“The entire point of the Equal Protection Clause is that treating someone differently because of their skin color is not like treating them differently because they are from a city or from a suburb, or because they play the violin poorly or well,” Roberts added.
Criticizing the dissents — which were authored by Jackson and Associate Justice Sonia M. Sotomayor — Roberts wrote that they “do not acknowledge” Supreme Court precedent.
“The principal dissent wrenches our case law from its context, going to lengths to ignore the parts of that law it does not like,” Roberts wrote. “Most troubling of all is what the dissent must make these omissions to defend: a judiciary that picks winners and losers based on the color of their skin.”
Toward the end of the opinion, Roberts again stated that while Harvard’s and UNC’s admissions programs violate the Equal Protection Clause, there is room for the targeted use of race in college admissions.
“At the same time, as all parties agree, nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise,” Roberts wrote.
Roberts continued that “in other words, the student must be treated based on his or her experiences as an individual — not on the basis of race.”
The Chief Justice concluded the opinion with a criticism of how universities have previously considered race in admissions, writing that “they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin.”
“Our constitutional history does not tolerate that choice,” Roberts wrote.
—Staff writer Rahem D. Hamid can be reached at email@example.com.
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