SCOTUS found affirmative action to be unconstitutional.  Specifically, it violates the 14th Amendment’s equal protection clause, given that White and Asian students were negatively affected in college admissions by virtue of their race.   Below is a brief summary of the Supreme Court’s decision (which is hundreds of pages), deftly written by Chief Justice John Roberts.

There’s a lot of gaslighting online from the left and those who have a personally vested interest in racial preferences. Reading the actual opinion brings much-needed clarity to the issue.

Yes, Racial Preferences Exist

If anyone is confused about who specifically benefits from affirmative action, SCOTUS explains:

“In the Harvard admissions process, “race is a determinative tip for” a significant percentage “of all admitted African American and Hispanic applicants.”” (2) 

Random people online claim that “white women are the biggest recipients of affirmative action.” This evidence above debunks that assertion. As we can see, neither white men nor white women received any bonus points in college admissions. Rather, as per the above, “African American and Hispanic applicants” received a “tip” or a boost for their race.

At UNC, it is the same process: 

“Readers are required to consider the applicant’s race as a factor in their review. Readers then make a written recommendation on each assigned application, and they may provide an applicant a substantial “plus” depending on the applicant’s race.” (2) 

The boost that African American students receive in college admissions is significant. I found this in a footnote of the court opinion:

According to SFFA’s expert, over 80% of all black applicants in the top academic decile were admitted to UNC, while under 70% of white and Asian applicants in that decile were admitted. 3 App. in No. 21–707, at 1078–1083. In the second highest academic decile, the disparity is even starker: 83% of black applicants were admitted, while 58% of white applicants and 47% of Asian applicants were admitted. And in the third highest decile, 77% of black applicants were admitted, compared to 48% of white applicantsand 34% of Asian applicants.

So thems the facts. If people online are obfuscating about whether there are racial preferences and who receives them, bring them here and show them the numbers.

The Decision

SCOTUS ruled that affirmative action is unconstitutional:

“Harvard’s and UNC’s admissions programs violate the Equal Protection Clause of the Fourteenth Amendment.” (2)

The court found that affirmative action violates the 14th Amendment’s Equal Protection clause: 

“Accordingly, as this Court’s early decisions interpreting the Equal Protection Clause explained, the Fourteenth Amendment guaranteed “that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States.”” (3)

Separate But Equal? 

The court discusses segregation: “Separate but equal” was overturned by Brown v. Board. Affirmative action is analogous to segregation.  With segregation, they tried to argue that it was still equal treatment, when it clearly wasn’t.  Likewise with affirmative action: It is argued that treating people unequally is in fact equality.  It defies common sense, which is why affirmative action is so unpopular. Brown v. Board is particularly relevant here because it relates to discrimination in education–you can’t do it. 

“Eliminating racial discrimination means eliminating all of it.”   

(4)

It’s a beautiful statement in its simplicity. As decided in the prior affirmative action case, Bakke vs. Regents of University of California: 

“For “[t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color.” Regents of Univ. of Cal. v. Bakke” (4).  

Amazingly, the liberal justices want just that.  They want people of color to have the law applied differently, and some of these justices themselves have benefited from affirmative action, such as Justices Sotomayor and Jackson.  That’s right, by their own admission, they benefited from affirmative action in terms of their college placements.

Prior affirmative action cases, such as Fischer v. University of Texas,  have dictated that there must be a “compelling government interest,” and that the use of race must withhold “strict scrutiny.”  In the Bakke decision, Justice Powell stated that “obtaining the educational benefits that flow from a racially diverse student body” was a justification for affirmative action.  In other words, it’s ok to use racial preferences to obtain diversity, and that’s pretty much been our system. He qualified this, though, by saying there couldn’t be quotas. 

Temporary? 

Furthermore, in the Grutter case, it was stated that at some point, affirmative action must end: 

“[e]nshrining a permanent justification for racial preferences would offend” the Constitution’s unambiguous guarantee of equal protection, the Court expressed its expectation that, in 25 years, “the use of racial preferences will no longer be necessary to further the interest approved today.” (6) 

The decision this week notes dryly: 

“Twenty years have passed since Grutter, with no end to race-based college admissions in sight.” (6) 

Technically, according to Grutter, affirmative action would have ended in 2028.  Harvard was weasley enough to argue, “Hey, it’s not 2028 yet.”  Does anyone believe they would have stopped it then? 

At the time, around 2000, liberals were happy to say that it was temporary.  Now that the arbitrary time period has passed, suddenly it’s not supposed to be temporary.  It was never supposed to be temporary.  This is the usual hypocrisy.  The decision notes that Harvard and UNC do not even purport that their racial preferences are temporary. 

How can you measure its success? 

The decision notes that all the stated purposes and goals associated with affirmative action are not possible to actually measure.  For example, in Fischer v. University of Texas, a stated purpose was to “train future leaders” and to produce “engaged and productive citizens.”   How can the Supreme Court measure if students have received the “educational benefits of diversity,” the court asked. What exactly are the benefits, so that we would know them if we saw them? 

The decision further notes that how diversity itself is defined is also arbitrary, given that “Asian” encompasses East Asians and South East Asians all in the same category, and that “Hispanic” is nebulous, and that there’s no category for Middle Eastern.  

Previously, universities have said “trust us,” Roberts writes.  That’s not good enough for this Supreme Court, especially when they are violating the 14th Amendment.  The decision notes that affirmative action cannot result in certain races being negatively affected, and yet that is just what happened, particularly in the case of Asians at Harvard: 

“The First Circuit found that Harvard’s consideration of race has resulted in fewer admissions of Asian-American students. Respondents’ assertion that race is never a negative factor in their admissions programs cannot withstand scrutiny.” (7) 

Another issue the court found is that using racial preferences for the purpose of diversity assumes that students of certain races bring a particular perspective based on their race.  But one cannot assume that a student holds a certain viewpoint just based on their race.  That in itself is a type of discrimination.  

A Big Caveat 

A big caveat in the decision:

“At the same time, nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university. Many universities have for too long wrongly concluded that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned, but the color of their skin. This Nation’s constitutional history does not tolerate that choice.”

This seems already to be misinterpreted, and indeed the court was perhaps unwise to open up this loophole.  As I’m reading it, this means that you might have a characteristic, such as persistence, which in your mind at least, is connected to your race.  For example, if you feel you’ve faced a lot of racism, but you persisted.  In that view, if a student expressed something like that in their application essay, it wouldn’t be unconstitutional for a university to consider that.  Yet now universities can simply look out for sob-stories about racism in students’ personal essays as a means to covertly continue to give racial preferences just as they’ve been doing. 

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