The Supreme Court has found the race-based admission practices of both Harvard University and the University of North Carolina to be unconstitutional violations of the Equal Protection Clause of the Fourteenth Amendment. In the words of Chief Justice Roberts, “Eliminating racial discrimination means eliminating all of it.”

In Students for Fair Admissions, Inc., decided on June 29, the Supreme Court, combining two cases, found the race-based admission practices of both Harvard and the University of North Carolina to be unconstitutional violations of the Equal Protection Clause of the Fourteenth Amendment. These are not cases of racial quotas, setasides, or proportional enrollments. Instead, at both universities, race has been an open and institutionalized factor in all contemporaneous admissions decisions regarding every applicant.

Equality cannot not have two contradictory meanings

Quoting Brown I that public education “must be available to all on equal terms,” and Brown II that schools must admit students “on a racially nondiscriminatory basis,” Chief Justice John Roberts, writing for the 6-3 majority, emphatically holds that it was 1954’s Brown v. Board of Education’s overturn of the separate-but-equal doctrine of Plessy v. Ferguson in 1896 that was the turning point in re-establishing that the “equal” in the 1868 Fourteenth Amendment’s Equal Protection clause really means “equal.” He then takes up the story since Brown.

Bypassing other post-Brown cases that Roberts necessarily deals with, let us jump to his treatment of the three decisions of the Court that are immediately relevant and which were the basis of written and oral argumentation in the two cases—the chief of which is the 48-year old Bakke case of 1978. In that landmark case concerning “affirmative-action” and “diversity,” the Court ordered the admission of white applicant Bakke to a public medical school at the University of California at Davis, which had instituted a set-aside in admissions of 16 spaces for minorities.

Writing for the Court, Justice Lewis F. Powell, joined by four other justices, rejected numerical quotas but added the qualification, joined by four other justices, that “race or ethnic background may be considered a “plus” as “one” of the “pertinent elements of diversity” for each application. Powell did not use the phrase “affirmative action” in his opinion for the Court, but Justice William J. Brennan, writing for the second group of concurring justices above, did so. And, of course, in the nearly 50 years since Bakke, affirmative action and diversity have become central and pervasive public and private philosophies, legal and social, concerning race in all American institutions.

In Bakke, Justice Powell held that “the guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color.” But that seeming vindication of the original and obvious meaning of the word “equal” has been the basis and justification for all unequal affirmative action in education ever since. After quoting Powell’s “cannot,” Roberts in Fair Admissions then goes on to consider how the Court has dealt with the “plus” factor in cases subsequent to Bakke. Two are most important. In Grutter v. Bollinger (2003), the Court, by a 5-4 vote, accepted the race-based diversity admissions policy of the law school of the University of Michigan. Writing for the Court, Justice Dandra Day O’Connor ended her opinion with the now-famous: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” Indeed, that statement, which might have been labeled “only dictum” years ago, became a major issue in the current case.

Roberts points out, “Twenty years later, no end is in sight.” Neither Harvard’s nor UNC’s race-based admissions programs “have a date” on them. And “both insist that the use of race in their admissions programs must continue.” “At some point,” says Roberts, writing for the six-person majority, they “must end.”

In Fisher v. University of Texas (2016) (Fisher II), the Court endorsed the university’s use of race as one of relevant “special circumstances” in admissions. With Justice Antonin Scalia having died and Justice Elena Kagan recusing herself because the case was filed when she was the U.S. solicitor general, the vote was 4-3. And with the retirement of Justices Kennedy and Breyer and the death of Justice Ginsburg, only four justices who were on the Court in Fisher II participated in Fair Admissions.

Roberts cites the authority of Fisher II for the requirement that the use of race must be “narrowly tailored.”  He observes that Fisher II has a Grutter-like limitation on “duration” and that for subsequent cases, Fisher II by its own language “offered limited ‘prospective guidance.’”

Institutionalized racial decision-making

In Fair Admissions, the detailed and multi-step procedures of their admission offices show the central consideration of race by both universities. Chief Justice Roberts, citing the appellate decision of the First Circuit and the Massachusetts federal district court in the Harvard case—both of which lower courts ruled for Harvard and also citing Harvard’s briefs—describes Harvard’s elaborate four-stage process in which race is explicitly considered at every stage. The “first reader” assigns an overall score to each applicant and takes race into account in assigning that score. Next, also taking race into account, subcommittees based on different geographic regions of the country decide on recommendations to the full admissions committee.  “At the beginning of the meeting,” the full committee discusses “the breakdown of applicants by race.” A major purpose “is to make sure that” there is not “a dramatic drop-off” in “minority admissions form the previous class.” Each committee member votes on each applicant, and in the end the final list of admittees is broken down by race. But there is still another step, call the “lop,” in which the list of admittees is re-evaluated based on four criteria, including race. And “race is a determinative tip” for a significant percentage of the final list of admittees.

The federal district court ruled in favor of UNC, and there was no appellate decision because the Supreme Court took up the case from the district court. Each application to UNC is initially and individually reviewed by one of forty admissions “readers.” Each reader is required to consider “race and ethnicity” as “one factor.” For the years at issue in the case, minority applicants usually received higher “personal ratings” but lower academic ratings than white and Asian-American applicants. Each reader makes an admissions recommendation about each applicant and is allowed to give applicants a “plus” based on race. Then a committee makes a final decision by reviewing the recommendation concerning each applicant, and the committee’s review may include a consideration of the applicant’s race.

Arguments, justifications

Aside from the realization that the “equal” in Equal Protection means equal for everyone, Roberts concentrates the largest part of his opinion for the Court on a refutation of the argued purposes of racial preferences. He states that neither university can satisfy the required judicial standard of “strict scrutiny,” the highest standard of constitutional litigation. To be accepted under that standard, a law involving a “suspect classification” such as race must demonstrate a compelling state interest, be narrowly tailored, and be the least restrictive means to achieve its purpose. Roberts cites the prior Fisher case, Fisher v. University of Texas (Fisher I) (2013), in which the Court had overturned that university’s racial admissions practices as failing strict scrutiny. And Roberts further references the case as standing on the principle that “outright racial balancing” is “patently unconstitutional.”

Concerning the two universities’ racial practices, Roberts essentially says that he cannot evaluate them under strict scrutiny because he cannot even get ahold of them. A court cannot evaluate them: “[T]he interests they view as compelling cannot be subject of meaningful judicial review.” Harvard says that the educational benefits of the use of race are training leaders who can “adapt to an increasingly pluralistic society, using diversity as an educational tool, and “producing new knowledge.” UNC argues that race promotes the exchange of ideas, understanding, problem-solving, preparing citizens and leaders, and enhancing racial respect and reducing stereotypes. Roberts says that though these purposes of both universities are commendable, they cannot be “measured” by a court or timed so as to be able to know when the racial considerations may be said to have been achieved.

Second, Roberts concludes that the Court fails to find “a meaningful connection between the means” the two universities “employ and the goals they pursue.” Both universities use racial categories, which Roberts calls “imprecise,” to classify their students. Who is Hispanic, for instance, and how can persons from the different Latin America countries be jointly or separately classified? The Chief Justice could have gone on to raise the question about racial mixing: i.e., what blood percentages are needed for any racial identification? How are East Asians different from South Asians? Roberts alleges that the two universities’ answers to such questions are “trust us.” He may as well have said that their promises are essentially the totality of both Harvard’s and UNC’s entire cases. For both universities follow the precedents forbidding racial quotas or set-asides, but both have attempted to bury sought-out and definite racial results in multi-layered and elaborate procedures in which there is no identifiable policy or practice to blame.

Roberts makes the decisive distinction:

Universities may define their missions as they see fit. The Constitution defines ours. Courts may not license separating students on the basis of race without an exceedingly persuasive justification that is measurable and concrete enough to permit judicial review. As this Court has repeatedly reaffirmed, “[r]acial classifications are simply too pernicious to permit any but the most exact connection between justification and classification.” Gratz v. Bollinger, 539 U. S. 244, 270 (2003) [internal quotation marks omitted]. The programs at issue here do not satisfy that standard.

Thirdly, Roberts holds that Harvard and UNC both violate the Equal Protection Clause’s precondition that race may not be employed as “a negative and that it may not operate as a stereotype.” Roberts is openly scornful of Harvard’s claim that it is not using race as a “negative.” “College admissions,” he states, “are zero-sum. A benefit provided to some applicants but not to other necessarily advantages the former group at the expense of the latter.” Both universities argue that they are not using race much. It “does not impact many admissions decisions,” they assert. But Roberts retorts that they thereby contradict themselves by quoting them at oral argument claiming that “the demographics of their admitted classes meaningfully change” if they were denied the use of race-based admissions.

As for stereotyping, Harvard, quoting Justice Powell in Bakke, argues that “a black student can usually bring something that a white person cannot offer,” and UNC maintained in oral argument in Fair Admissions that race speaks about “who you are.” In reply, Roberts retorts that the Court has “time and time again forcefully rejected the notion that government actors may intentionally allocate preferences to those ‘who may have little in common with one another but the color of their skin,’” quoting Shaw v Hunt, a 1996 case in which race was the main factor in the drawing up of a congressional district, and Rice v. Cayetano, a 2000 case concerning the rights of indigenous Hawaiians, where the Court held that race can “demean the dignity and worth of a person” by diminishing “his or her own merit and essential qualities.

Fourth and finally, Roberts makes as his most important point the lack of a “logical end point,” quoting Grutter, in both universities admissions policies. And on this point, he cites the Department of Justice as well: “Respondents and the Government first suggest that respondents’ race-based admissions programs will end when, in their absence, there is “meaningful representation and meaningful diversity” on college campuses.” Roberts points out that neither university offers any “specified percentages” or “numerical benchmarks” as to when “meaningful representation” might be achieved. “So what does it involve,” Roberts asks?

Roberts says that Harvard and UNC admission programs will never achieve the constitutional mandate that “the Government must treat citizens, not as simply components of a racial, religious, sexual or national class,” quoting Miller v. Johnson, a 1995 gerrymandering case. By offering only “rough percentages” of when racial balance will be achieved, the universities ignore this principle from the beginning and continue with it. Roberts rejects the universities’ stated intention of continuing race-based admission until society has benefitted overall from diversity. He points out that will require them to continue race-based policies right now and avoid the present question of whether they are constitutional. He also continues in his conclusion that it is or would be possible for the judiciary to decide such issues. The two universities contend that Justice O’Connor’s 25 year deadline is not up until 2028, but Roberts notes that the 25-year “expectation” does not allow them to continue presently unconstitutional practices and that both universities have every plans to continue their race policies beyond that time limit anyway. Finally, Roberts turns aside the universities’ implicit contention that if they conduct a review of their policies and adopt a new race-based plan that the 25-year period starts anew.

Much else could and needs to be said and considered. Fair Admissions is more than obviously a constitutional landmark. Chief Justice Roberts’ majority opinion for the Court is 40 pages long. With that opinion and three concurring opinions, of which Justice Clarence Thomas’ is 58 pages, and two dissenting opinions, of which Justice Sonia Sotomayor’s is 69 pages, the case totals 229 pages, almost assuredly the longest in the Court’s history.

This review has focused on what may be called Chief Justice John Roberts’ constitutional and definitional “fundamentalism” and on two opposing attempts to include inequality in the definition of equality. To Roberts in Fair Admissions, “Eliminating racial discrimination means eliminating all of it.”

Yes, it is a kind of fundamentalism.

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The featured image is a formal group photograph of the Supreme Court as it was been comprised on June 30, 2022 after Justice Ketanji Brown Jackson joined the Court. The Justices are posed in front of red velvet drapes and arranged by seniority, with five seated and four standing. Seated from left are Justices Sonia Sotomayor, Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito and Elena Kagan. Standing from left are Justices Amy Coney Barrett, Neil M. Gorsuch, Brett M. Kavanaugh, and Ketanji Brown Jackson. Credit: Fred Schilling, Collection of the Supreme Court of the United States. Courtesy of Wikimedia Commons.