AFFIRMATIVE ACTION STRUCK DOWN BY SUPREME COURT

 The U.S. Supreme Court considered the admissions practices of two of the oldest institutions of higher education in the United States: Harvard and the University of North Carolina.  Each receives tens of thousands of applications for admission each year, but only a small fraction of that number can be admitted. The admissions process is very selective.   The schools screen applicants by grades, letters of recommendation, extracurricular activities, school support and personal characteristics.  After doing so, the applicant’s race is considered.

For Harvard, one goal of the admissions process is to ensure there is no drop-off in the number of minority admissions from the prior class.

That is affirmative action in a nutshell, and it is practiced throughout the United States.  Harvard has admitted that race “is a determinative tip” for a significant number of blacks and Hispanics admitted.

The Plaintiff in this case is an advocacy group, “Students for Fair Admissions.”  It filed separate lawsuits against Harvard and the University of North Carolina, claiming their admissions processes, incorporating the basic principles of affirmative action,  violated students’ rights to Equal Protection Under the Law, guaranteed by the Fourteenth Amendment.  The group then tried both cases to a lower court (not to a jury) and lost both cases.

The U.S. Supreme Court consolidated the cases for the purpose of review, as the constitutional issues raised in both cases was identical: affirmative action in the context of college admissions favors one racial group over another, instead of treating all racial groups equally.

The U.S. Supreme Court agreed with the Students for Fair Admissions, holding Harvard’s and UNC’s admissions programs violate the Equal Protection Clause of the Fourteenth Amendment.

In relevant part, the Fourteenth Amendment states:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The early cases deciding the meaning of this clause held it meant the laws in the states shall be the same as for the black as for the white, “that all persons, whether colored or white, shall stand equal before the laws of the States.”

The Court noted that despite the mandate that black and white be treated equally, that did not happen for almost a century.  The Supreme Court forever marred its reputation by allowing for the treatment of black and white “separate but equal” in its infamous Plessy v. Ferguson decision, which was finally buried for good in the Brown v. Board of Education decision in 1954. In that decision, the Court finally acknowledged that the “separate but equal” doctrine, in practice, was inherently unequal and unfair to blacks.

In its Brown v. Board of Education decision, the Supreme Court stated that the right to a public education “must be made available to all on equal terms.”  A short time later, the Court stated full compliance with Brown required schools to admit students “on a racially nondiscriminatory basis.”

In the years following Brown, the Court repeatedly struck down state and local laws requiring segregation in various forms. The core purpose of the Equal Protection Clause was to “do away with all governmentally-imposed discrimination based on race.”

It was a noble endeavor by the Court.

In 1978, in Bakke v. California, affirmative action was challenged by a would-be student.  The Court decided that race could be used as a factor in admissions, but only in a positive way; the schools could not use race as a disqualifying factor. 

Schools thereafter have tried to incorporate race into the admissions process.  Along the way, the obvious question was raised: when is this favoring of one race over another, to make up for past wrongs, going to end?

In 2003, the Supreme Court in Grutter v. Bollinger raised that question: when is this practice going to end.  It cannot go on forever. 

The Court in this case, in an opinion authored by Justice Roberts, decided that, fifteen years after Bakke, and twenty years following Grutter, the time has come to treat all students equally in the admissions process.  Race cannot be used as a plus or minus in anyone’s application to a school.  In fact, the affirmative action program has actually discriminated against Asian Americans.  In their case, race has been used negatively in the admissions process.

Although race cannot be used in the abstract, in a quota sense, the applicant can address, and a school can consider, how the applicant’s race has affected his/her character or quality of life.  Race, therefore, can be considered, but only in the context of how it challenged a person’s character and how the applicant rose to meet those challenges.