The Supreme Court handed down a definitive ruling against the use of racial preferences in college admissions, declaring in a 6-3 decision on Thursday: “Eliminating racial discrimination means eliminating all of it.”
The syllabus opinion in Students for Fair Admissions v. President and Fellows of Harvard College notes that any exceptions to that principle — based on the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution — “must survive a daunting two-step examination known as “strict scrutiny.” Unless the discrimination is for a “compelling” government interest, and is “necessary” to achieve it, it is unconstitutional.
Reviewing the history of precedents on racial preferences, which allowed the limited use of affirmative action in college admissions, the syllabus notes that “the Court has permitted race-based college admissions only within the confines of narrow restrictions: such admissions programs must comply with strict scrutiny, may never use race as a stereotype or negative, and must—at some point—end.”
The policies used by Harvard and University of North Carolina failed that test, the Court said, and their weaknesses were exposed when challenged by an advocacy group on behalf of Asian-American students, who suffered the most from racial preference policies.
Writing for the majority, Chief Justice John Roberts elaborated on the expectation that racial preferences have to end at some point: “The importance of an end point was not just a matter of repetition. It was the reason the Court was willing to dispense temporarily with the Constitution’s unambiguous guarantee of equal protection. … Twenty years later, no end is in sight.” Even with the best of intentions, he said, these policies are unlawful.
Justice Clarence Thomas wrote a concurring opinion extending the Court’s reasoning to all forms of affirmative action policy in general:
I write separately to offer an originalist defense of the colorblind Constitution … to clarify that all forms of discrimination based on race—including so-called affirmative action—are prohibited under the Constitution; and to emphasize the pernicious effects of all such discrimination. … All citizens of the United States, regardless of skin color, are equal before the law. … The solution to our Nation’s racial problems thus cannot come from policies grounded in affirmative action or some other conception of equity. Racialism simply cannot be undone by different or more racialism. Instead, the solution … is incorporated in our Constitution: that we are all equal, and should be treated equally before the law without regard to our race.”
While acknowledging the past, Thomas concluded:
While I am painfully aware of the social and economic ravages which have befallen my race and all who suffer discrimination, I hold out enduring hope that this country will live up to its principles so clearly enunciated in the Declaration of Independence and the Constitution of the United States: that all men are created equal, are equal citizens, and must be treated equally before the law.
The dissenting opinions argue,that race-based policies are necessary to fix race-based discrimination in the past. Justice Sonia Sotomayor, for example, argued that the Court had acknowledged in the past that equality “can be enforced through race-conscious means in a society that is not, and has never been, colorblind.” She argued that a “limited use of race” in admissions could allow for inequalities to be addressed over time.
In a notable dissent of her own, Justice Ketanji Brown Jackson — President Joe Biden’s sole nominee thus far, who had to recuse herself from the part of the case that deals with Harvard, on whose board she served — wrote that there were “universal benefits of considering race” in admissions.
She added: “The race-based gaps that first developed centuries ago are echoes from the past that still exist today. By all accounts, they are still stark. …
“With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat,” Justice Jackson concluded. “But deeming race irrelevant in law does not make it so in life.”
Regardless, the policy of racial preferences is now dead. Universities may try to work around that ban — as they have in California after voters ended affirmative action in Proposition 209 — but they do so at their legal peril.
The cases are Students for Fair Admissions v. Presidents and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina, Nos. 20-1199 and 21-707 in the Supreme Court of the United States.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the new biography, Rhoda: ‘Comrade Kadalie, You Are Out of Order’. He is also the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.