The latest Pew Research Center polling suggests that a mere one-third of Americans favor considering race and ethnicity in college admissions. Over 9.65 million California voters rejected a proposal to repeal an existing race-based affirmative-action ban in 2020. Now, with their ruling overturning race-conscious university admissions in Students for Fair Admissions v. Harvard College and the University of North Carolina (UNC), America’s highest court has affirmed this broad national consensus against race-preferential government action.
The 237-page-long Court decision is a victory for what Chief Justice John Roberts, writing for the majority, sees as “the transcendent aims of the Equal Protection Clause … ‘that all persons, whether colored or white, shall stand equal before the laws of the States.’”
Amorphous Goals with No “Logical End Point”
It is important to note that the Court’s opinion does not categorically overturn decades of legal precedent, set in cases like Bakke, Grutter, Gratz, and Fisher. Rather, the ruling clarifies previous decisions and reinforces the authority of the legal scrutiny given by our Constitution to the judicial branch. Specifically, the opinion strengthens the norm of equal protection under the law and formalizes the restrictions on how universities can use race in their admissions processes, as initially outlined in the previously mentioned rulings. “Eliminating racial discrimination means eliminating all of it,” Chief Justice Roberts wrote for Thursday’s majority.
The ruling strengthens the norm of equal protection under the law.As early as the 1950s, the Supreme Court recognized the drawbacks of “even racial distinctions that were argued to have no palpable effect.” Two decades later, in the Bakke decision (1978), Justice Powell announced the Court’s judgment that a racially diverse student body was “a constitutionally permissible goal,” yet he emphasized that “a university’s freedom was not unlimited.” Furthermore, the Court concluded that “racial and ethnic distinctions of any sort are inherently suspect.”
Justices Roberts, Thomas, Alito, Gorsuch, Kavanaugh and Barrett agreed in Thursday’s landmark ruling that Harvard and UNC have used race too liberally in their quest to meet the amorphous objectives of racial diversity and the remedying of past societal discrimination. While perhaps commendable, these goals are inherently elusive and therefore can’t satisfy the “strict scrutiny” doctrine established in 1938. They can’t be measured objectively, and no meaningful connection between the means and the goals can be articulated. In their rejection of affirmative-action on campus, the justices quoted 2007’s Parents Involved in Community Schools v. Seattle School District No. 1: “Classifying and assigning” students based on their race “requires more than … an amorphous end to justify it.”
The Court’s opinion also shows distaste for universities’ insatiable desire to continue their race-preferential admissions practices in perpetuity. To that end, the ruling focuses on the time-limits imposed on race-conscious government action in past Supreme Court rulings. It argues that Harvard and UNC have disingenuously manipulated previous rules as an excuse to discriminate indefinitely.
The role of race must be subordinated to the overarching principle of equal protection. This is in order to guard against two dangers of “all race-based government action”: first, illegitimate racial stereotyping, and, second, racial discrimination that unduly harms groups that are not beneficiaries.
An Inherent Benefit in Race qua Race?
The Court’s ruling treats the political fashion of racial diversity rather critically. It invokes Grutter’s Equal Protection Clause jurisprudence by noting that universities may not operate their admissions programs on the “belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue.” This is rather commonsensical: The assumption that “members of the same racial group—regardless of their age, education, economic status, or the community in which they live—think alike” contradicts the very “diversity” argument that colleges are attempting to make.
Using race for race’s sake “demeans the dignity and worth” of those who are “judged by ancestry instead of by [their] own merit.” own merit.”"]More importantly, using race for race’s sake “demeans the dignity and worth” of those who are “judged by ancestry instead of by [their] own merit and essential qualities.” Perpetuating such logic can lead to pernicious racial stereotypes “that treat individuals as the product of their race, evaluating their thoughts and efforts … according to a criterion barred to the Government by history and the Constitution.” This is in addition to the fact that the kind of racial categories preferred by universities and colleges are imprecise, plainly overbroad in some ways, and underinclusive in other ways.
The Court writes that “the race-based admissions systems that [the] respondents employ also fail to comply with the twin commands of the Equal Protection Clause that race may never be used as a ‘negative’ and that it may not operate as a stereotype.” Here, the majority opinion touches upon the negative consequences of insidious racial classifications in college admissions, which are inherently zero-sum. Although it ruled in Harvard’s favor, the First Circuit Court acknowledged in 2020 that “Harvard’s consideration of race has led to an 11.1 percent decrease in the number of Asian-Americans admitted to Harvard.”
Simply put, arbitrary racial categories do not promote diversity and, at the same time, unduly harm those who are deemed not diverse enough. Classifying American citizens into rigid boxes of “Asian,” “Hispanic,” “White,” “African-American” and “Native American” undermines the stated goal of diversity.
Defiant Reactions and an Ongoing Battle
Unsurprisingly, the Court’s recognition of “the broad sweep” of equal justice angers those attached to the progressive status quo, who are now engaged in the collective shaming and gaslighting of the majority of Americans who don’t agree with treating citizens disparately on the basis of race. President Biden decries the court ruling as “not normal” and not representative of “what America stands for.” California Governor Gavin Newsom condemns “right-wing activists—including those donning robes—[for] trying to take us back to the era of book bans and segregated campuses.” Harvard pledges to preserve its essential value of racial diversity on campus despite the Court’s ruling.
It is to be expected that defenders of race consciousness will take advantage of the Supreme Court’s judicial humility.It is to be expected that defenders of race consciousness will take advantage of the Supreme Court’s judicial humility, which, in not overturning Grutter explicitly, will allow universities to continue to consider “an applicants’ discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” Given this inch, progressive admissions committees will push for a mile. But the Court is also firm that “universities may not simply establish through application essays or other means the regime we hold unlawful today.” Colleges will have to be careful not to use admissions essays as a proxy for newly outlawed racial bean-counting systems.
While the fight to match universities’ actions to the letter and spirit of equal protection must go on beyond the courtroom, the Harvard and UNC decision has made it decisively harder for college social-justice warriors to discriminate on the basis of race. President Biden is right about fighting for “what America stands for.” Yet America does not stand for the odious racial classifications upon which the diversity paradigm is built.
Wenyuan Wu holds a Ph.D. in international studies from the University of Miami and is the executive director of Californians for Equal Rights Foundation.