Supreme Court strikes down 40 years of affirmative action
In a Key Facts document about the case, Harvard explained that its admission policy “considers race as one factor among many in a whole-person review of each applicant.” Furthermore, Harvard asserted that the Court “has twice cited Harvard’s admission process as a model for how other colleges and universities can consider race consistent with the law and the Constitution.”
Prior to the case brought by the SFFA, the Court has permitted race-conscious admissions on the grounds that the program complies with “strict scrutiny, may never use race as a stereotype or negative, and must – at some point – end.”
Yet, after much deliberation, the Supreme Court found both Harvard College and UNC’s admissions program “permissible under the Equal Protection Clause.” The Court held that the principles of the Equal Protection Clause did not permit law-based distinctions based on race or color. The Court explained that their interpretation of the clause was “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.”
Additionally, the Court stated that Harvard and UNC’s race-conscious admissions policies failed to operate in a manner that was “sufficiently measurable to permit judicial [review] under the rubric of strict scrutiny.”
The shift in the Court’s perspective on affirmative action, according to Sinha, is a result of the makeup of the Court. “In the last 20 years, nothing has changed materially that would explain that shift, except the composition of the Court,” Sinha said. “A majority of the justices on the Court now just don’t like the idea of affirmative action.” Since 2020, the Court contains six conservative justices and three liberal justices.
In their recently published article, Racial Justice Without Affirmative Action: Embracing International Law after SFFA v. Harvard, Sinha and his co-author Ian M. Kysel, an assistant clinical professor of law at Cornell Law School, shed light on the uniqueness of the SFFA case. Unlike previous cases that challenged affirmative action, the SFFA case neglected the role of international law. Specifically, under the United Nation’s International Convention on the Elimination of All Forms of Racial Discrimination treaty (ICERD), the United States is still obligated to “adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information.” Kysel and Sinha suggested that under ICERD the U.S. is required to adopt “temporary measures designed to boost access to resources and opportunities for historically disadvantaged groups.” Until two months ago, one such measure included affirmative action.
After the release of the Court’s decision, President Joe Biden remarked that he “strongly disagree[s] with the Court’s decision.” The Departments of Justice and Education also offered guidance, suggesting that educational institutions continue their efforts to “seek the admission and graduation of diverse student bodies” through “targeted outreach, recruitment and pathway programs.”
However, despite the Biden administration’s active message on racial justice, Sinha stated that “they [the Biden administration] never really publicly acknowledged that we are legally obligated to do these things.” Kysel and Sinha noted that “the administration’s ‘friend of the court’ amicus brief in SFFA also omitted any reference to the [ICERD] treaty.” In other words, Sinha explained that the administration never explicitly recognized “that we signed and ratified this treaty [ICERD], for almost thirty years, we’ve been bound to eliminate racial discrimination both functionally and deliberately.”
During the trial, the SFFA suggested that higher education institutions use socioeconomic status as a substitute for race. William Lee, Harvard University’s lead trial counsel, disclosed that Harvard had considered the SFFA’s alternative propositions and concluded that they would not “permit Harvard to achieve its educational goals as well as build the diverse learning community central to its educational mission if race were not taken into consideration.” In the Harvard Gazette, Lee stated that an analysis performed by economist David Card “found that such an approach would result in a class that was less academically qualified and would have 40% fewer African American students.”
“If affirmative action was class-based, it could still help some minority students get into higher education while also helping poor students in general have a higher chance of attending good colleges,” Prioleau said.
“The goal from the anti-affirmative action position is for there to be race blind policies, race neutral policies [or] colorblind policies, where we just don’t don’t give any credence to our awareness of racial or ethnic identity,” said Cornell Craig, Hofstra University’s chief diversity and inclusion officer. “History has shown that when you do have colorblind or race-neutral approaches that dominates perspectives, dominant identities will over represent and identities of minoritized communities – of people of color, even of women – will be well overrepresented in exclusion.”
Although the nation has been focused on remedying educational diversity at the higher institution level, Craig suggested that the public also focus on the K-12 education system. “We are asking universities, really on the back end of the education journey, to make up for other inequities that are throughout the education system writ large,” Craig said. “When we’re talking about competency or qualifications to even apply to a university, that’s something that has nothing to do with the university – that has to do with K-12.” According to Craig, these issues include school funding, redlining and ongoing segregation within communities.
Regarding Hofstra University, the SFFA case is not foreseen as having a great impact on the university’s approach to recruiting students. According to Craig, Hofstra did not have an affirmative action policy. “We really use a holistic approach,” Craig said. “So that’s looking at all the qualities that a student brings to their admission application.” A message issued by president Susan Poser on Jun. 29, stated that Hofstra “will continue to follow a holistic admissions process that has helped to create a campus environment that embodies our community’s core values of diversity, equity, inclusion, and multiculturalism.”
Consequently, the Court’s momentous decision bequeaths the public with anxiety as it awaits the impact of upending affirmative action. Cara McClellan, the director of the Advocacy for Racial and Civil Justice Clinic and an associate professor of law at the University of Pennsylvania Carey Law School, told CNBC that “there’s a real risk that the incoming classes will look different.” She predicted that “without considering race, there would be a reduction in the number of underrepresented students of color.” In 1996, the University of California witnessed a 12% decrease in underrepresented students after eliminating affirmative action in its admission policy. The SFFA case has resulted in a period of uncertainty for higher education institutions as they await to witness the impact on their campus diversity.
Those who are interested on learning more about the recent SCOTUS decision are advised to attend the Affirmative Action Symposium hosted by Hofstra’s Office of Equity and Inclusion on Oct. 10, at the Guthart Theater.