By legal expert Andrew Roman
Introduction
If you thought the US Supreme Court’s abortion decision overturning Roe v. Wade was controversial, wait until you see the results of its June 29, 2023 decision on affirmative action in university student admissions.
Reading the several conflicting opinions in the 237-page case report can feel daunting – even for those trained in the law. But the bottom line is simple and important. The US Supremes found that university policies designed to atone for historical discrimination against Black Americans are discriminatory against Asian Americans, and thus, are unlawful.
But then the Court also explained how universities could continue to discriminate, and do so lawfully. The effect of this somewhat inconsistent messaging an be interpreted by university administrators as “You can keep on discriminating, just be more subtle about it.”
The Court’s Opinion
The United States Supreme Court’s opinion examined the affirmative action policies used by Harvard and the University of North Carolina (“UNC”) in student admissions. By a 6:3 split the majority of the Court held that their admissions systems (similar to those of many other universities) were unlawful because they denied applicants of Asian origin equal protection of the laws, as required by the Constitution.
The Immediate Reaction
The media and political reaction has been one of shock and outrage, asserting that all affirmative action has effectively been prohibited. Reaction has also been strongly partisan. President Biden said that this was not a normal court, and that its decision has unfairly reversed decades of precedent. With the greatest of respect to the US President, he did not understand what the relevant precedent had decided. The Court did not reverse precedent; it actually applied it.
The Majority Opinion is Misunderstood
In the 2003 precedent Grutter v. Bollinger (citations omitted), the justices had expressed a number of concerns about race-based action devolving into illegitimate racial stereotyping. Therefore, they did not decide that these discriminatory programs were indefinitely acceptable, but instead, imposed a final time limit: At some point over the next 25 years, the Court held, they must end.
Obviously, that “at some point” was an invitation to a future court to decide whether that point has been reached. And 20 years after Grutter, that’s what the majority in this Court decided.
Justice Sotomayor, dissenting, and supported by two other justices, wrote:
“Today, this Court stands in the way and rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits. In so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.”
The fatal flaw in the dissenting judges’ position is that if race has always mattered and continues to matter, why does it not matter if the race is Asian? That amounts to saying that it’s okay to give my race “critical benefits” at the expense of their race. That is not equal treatment.
In his judgment concurring with the majority, Justice Thomas (one of two Black justices on the Court) wrote:
[The] Petitioner here represents Asian Americans who allege that, at the margins, Asian applicants were denied admission because of their race. Yet, Asian Americans can hardly be described as the beneficiaries of historical racial advantages. To the contrary, our Nation’s first immigration ban targeted the Chinese, ….
Given the history of discrimination against Asian Americans, especially their history with segregated schools, it seems particularly incongruous to suggest that a past history of segregationist policies toward blacks should be remedied at the expense of Asian American college applicants.
Contrary to many media stories, the majority reasons for decision did not hold that the experience of any racially disadvantaged individuals is irrelevant. It merely held that the alleged benefits of “diversity” based on skin colour did not justify tilting the playing field in favour of vaguely defined Black and Hispanic applicants at the expense of vaguely defined Asian-American applicants.
Racially Proportionate Discrimination by the Numbers
The first footnote on the first page of Chief Justice Roberts’ majority opinion explains the zero sum game: over 60,000 people applied to Harvard last year but fewer than 2,000 were admitted. If a certain number or percentage of these spaces is intentionally reserved for a preferred race that leaves fewer spaces for other races that are given lower preference. In the Harvard admissions process “race is a determinative tip” for a significant percentage of all admitted African-American and Hispanic applicants.
And, at UNC:
“According to [the petitioner’s] expert, over 80 percent of all black applicants in the top academic decile were admitted to UNC, while under 70 percent of white and Asian applicants in that decile were admitted. In the second-highest academic decile, the disparity is even starker: 83 percent of black applicants were admitted while 58 percent of white applicants and 47 percent of Asian applicants were admitted. And in the third-highest decile, 77 percent of black applicants were admitted compared to 48 percent of white applicants and 34 percent of Asian applicants. The dissent does not dispute the accuracy of these figures.
The same is true at Harvard. An African-American [student] in [the fourth lowest academic] decile has a higher chance of admission (12.8 percent) than an Asian American in the top decile (12.7%). ; (black applicants in the top four academic deciles are between four and ten times more likely to be admitted to Harvard than Asian applicants in those deciles).”
Although the Court prohibited the current method of affirmative action, it did not prohibit all race-conscious selection practices. Consideration of the individual circumstances of applicants from disadvantaged or marginalized groups can still be used to determine admissions.
What is Now Prohibited?
“Respondents’ assertion that race is never a negative factor in their admissions programs cannot withstand scrutiny. College admissions are zero-sum, and the benefit provided to some applicants but not to others necessarily advantages the former at the expense of the latter.
Outright racial balancing is patently unconstitutional.
Eliminating racial discrimination means eliminating all of it.…
What is Still Permitted?
A university may consider an applicant’s life experiences and their aspirations, but not merely their race or skin colour.
“A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race.”
In effect, the Court is saying if universities use criteria that are not explicitly racially discriminating, by looking at applicants as individuals, universities can use their judgment to assess applicants’ claimed courage, determination and assumptions of leadership. Universities can assess these subjectively determined, self-described virtues through the essays applicants are asked to submit as part of their applications.
Looking Ahead
The Court prohibited “affirmative action” by present methods, and also warned universities not to try to do indirectly what they cannot do directly. But if universities are determined to continue racial preferences – resulting in continued racial discrimination – the Supreme Court cannot police millions of individual judgments of applicants’ self-described courage, determination and assumption of leadership that happen to accomplish the same result as overt racial preference.
It won’t take long before clever students figure out how to game this system. This becomes especially easy as more universities do away with entrance tests like the LSAT. Just to see how easily this game might be played, even by the laziest students, I asked the artificial intelligence app ChatGPT to draft an essay for a hypothetical applicant to Harvard Law School. Here is the result:
My Question:
Can you help me to write a letter to Harvard Law School seeking preference in admission to that school in accordance with Harvard’s admission policies, on the ground that as a Black student I have faced and overcome severe personal hardship with courage.
ChatGPT Reply:
Dear Admissions Committee,
I hope this letter finds you well. I am writing to express my sincere interest in seeking admission to Harvard Law School for the upcoming academic year. As an aspiring law student, I have always been captivated by the prestigious reputation and academic excellence that Harvard Law School offers. Furthermore, I believe that my unique personal experiences, coupled with my determination and resilience, make me an ideal candidate to contribute to the vibrant community at Harvard.
As a Black student, I have encountered numerous challenges throughout my life that have shaped me into the individual I am today. These hardships have ranged from systemic obstacles to personal adversities, and I have consistently demonstrated the strength and courage necessary to overcome them. Through perseverance and determination, I have not only triumphed over these obstacles but also developed a profound understanding of the importance of justice, equality, and the transformative power of the law.
Growing up in a community impacted by socioeconomic disparities, I witnessed firsthand the profound impact that legal representation can have on marginalized individuals. This exposure ignited my passion for social justice and prompted me to embark on a journey to pursue a legal education. Throughout my academic career, I have consistently sought opportunities to broaden my understanding of the law and its potential to create positive change.
In addition to my academic pursuits, I have actively engaged in community service initiatives aimed at addressing systemic issues that disproportionately affect marginalized communities. Through my involvement with local organizations, I have worked to empower individuals facing various challenges, including inadequate access to legal representation. These experiences have reinforced my commitment to advocating for justice and equity and have deepened my resolve to effect meaningful change through the legal system.
Harvard Law School’s commitment to diversity and its recognition of the value that individuals from different backgrounds bring to the educational environment align perfectly with my own aspirations. I firmly believe that my unique experiences as a Black individual, combined with my tenacity and resilience, will contribute to the diversity of perspectives at Harvard Law School and enrich the discourse within the community.
While I understand that admission decisions at Harvard Law School are based on a comprehensive evaluation of an applicant’s qualifications and potential, I kindly request that my application be given careful consideration in accordance with Harvard’s admission policies, which prioritize diversity and recognize the value of overcoming personal hardships. By granting preference to individuals who have faced and surmounted significant obstacles, Harvard Law School demonstrates its commitment to fostering an inclusive environment that celebrates resilience and the potential for personal growth.
I am confident that my passion for social justice, my academic achievements, and my commitment to overcoming adversity make me a strong candidate for admission to Harvard Law School. Given the opportunity to join the esteemed community at Harvard, I am eager to contribute my unique perspective, engage in robust intellectual discussions, and make a meaningful impact both within the school and beyond.
Thank you for considering my application. I look forward to the possibility of being a part of the Harvard Law School community and working towards a more equitable and just society.
Sincerely,
[Your Name]
Not a polished essay, but a good start. With a bit of editing and personalization it might even help someone’s admission to Harvard Law School.
Conclusion
College admissions will always be a zero-sum game. With thousands more applicants than places, principled discrimination in deciding who will be admitted will always be necessary. The only question is: applying what principle? Helping the disadvantaged is at least as principled as current policies of preference for children of alumnae and of generous donors. But skin colour or race does not equate to disadvantage: The child of a Black African country president who can afford to pay Harvard’s massive tuition fees may be privileged compared to the child of a Chinese immigrant working as a waiter or cleaner.
There is no precedential authority in Grutter to justify the dissenting judges’ position that these race-based practices should continue indefinitely rather than ending now. If not now, when? In his opinion concurring with the majority Justice Gorsuch wrote:
“As I have explained, the Court’s pronouncement of a 25-year period—as both an extension of and an outer limit to race-based affirmative action in higher education—formed an important part of the carefully constructed Grutter decision. I would abide by that temporal limit rather than discarding it, as today’s dissents would do.”
It is the dissenting judges who wanted to over-rule the time limit ruling in Grutter, the applicable precedent, not the majority.
Only time will tell whether the universities will stop these unlawful admission practices or just become more subtle in continuing them.
Read the original version of this blog at the author’s website here.