Commentary on Recent Supreme Court Decision by Mason Kortz

Students for Fair Admissions v. Harvard

Students for Fair Admissions v. Harvard realizes the conservative goal of ending affirmative action programs. In it, the Court sets down three requirements that affirmative action programs must satisfy: they must pass strict scrutiny, they must not use race as a “negative,” and they must have an explicit end date. The majority claims these requirements arise from precedent. However, they are far more burdensome than anything contemplated in prior cases. By creating impossible new requirements for race-conscious admissions, the majority has outlawed any attempts at remediating this country’s history – and present – of racial discrimination in higher education.

At issue in Fair Admissions are the race-conscious admissions programs of Harvard University and the University of North Carolina. Students for Fair Admissions, a non-profit founded by conservative activist Edward Blum, sued on behalf of its membership (a strong articulation of organizational standing being a thin silver lining for impact litigators). In both cases, the lower court held that the universities’ programs complied with the commandments of University of California v. Bakke, Grutter v. Bollinger, and Fisher v. University of Texas. The Supreme Court reversed.

In typical Roberts fashion, the majority opinion begins by extolling the very precedent it is about to ignore. The Court provides a high-level and selective overview of Justice Powell’s opinion in Bakke and its later adoption in Grutter. From this review, the Court purports to extract three limits on race-conscious admissions: strict scrutiny, a prohibition on “negative” uses of race, and a duration requirement. While these elements are indeed present in prior cases, the majority opinion raises the bar from “exacting” to “impossible.”

Fisher summarized the level of scrutiny applied in affirmative action cases:“once . . . a university gives a reasoned, principled explanation for its decision, deference must be given to the University’s conclusion, based on its experience and expertise, that a diverse student body would serve its educational goals.” Under the majority rule in Students for Fair Admissions, however, the Court has granted itself power to determine whether a program’s goals are adequate. Although the universities articulated goals that are at least as clear as those in Bakke, Grutter, and Fisher, the Court held that they are too vague to be tested. The majority also ratchets up the test for narrow tailoring. In 2016, the Court held that a university implementing affirmative action “bears the burden of proving a nonracial approach would not promote its interest in the educational benefits of diversity about as well” as a race-conscious approach. Now, the Court has also taken it upon itself to assess whether a school could have implemented a better race-conscious approach – effectively raising the bar from “narrowly tailored” to “perfectly tailored.” In doing so, the Court completely ignores that studies cited by the respondents that racial diversity promotes learning, reduces prejudices, and increases tolerance.

Next, the majority opinion also reads into Grutter a requirement that race-conscious programs cannot be used as a “negative” in admissions. The Court reason that any efforts to increase admissions in one racial group will necessarily hurt other groups, violating this new-found rule. Again, this is a much more stringent requirement than actually exists in Grutter, where the Court held that affirmative action could not unduly burden non-minority groups. The rule articulated in Grutter was that race should not foreclose a university from considering the other ways in which a student might contribute to diversity – not that diversity was a zero-sum game.

Finally, the majority takes the aspirational statement in Grutter that, by 2028, race-conscious admissions would no longer be required and turns it into an absolute requirement. Grutter did hold that affirmative action programs must be time limited. It also explicitly approved periodic reviews as a measure of such limits. But no more – under the Court’s new rule, periodic review is essentially impossible. According to the majority, review based on admission numbers is impermissible, because this is equivalent to a racial balancing or quota system. On the other hand, review based on student experience is impermissible because it cannot be measured in numbers. This catch-22 leaves only one option: programs that end after a fixed time. Even that may not suffice, though, as the Court reserves for itself the right to determine whether a school will genuinely terminate its programs in the foreseeable future.

The majority opinion proceeds, without irony, to chastise the dissents for ignoring stare decisis. It concludes by offering that colleges may still consider how race has impacted individual students’ lives – then invites a challenge to this very practice by assuming schools will “cheat” by reading race into admission essays. In the end, despite claiming to apply the standard that has governed for the last 45 years, the majority has created a new set of rules that make race-conscious admissions nearly impossible to sustain.

Mason Kortz