The Abrogation of Affirmative Action in College Admissions

by Grant Alan Williams, Associate Member, University of Cincinnati Law Review Vol. 91

I. Introduction

In one of the most famous dissents in Supreme Court history, Justice John Marshall Harlan proclaimed, “[o]ur constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.”¹ Throughout the history of the United States, the issue of race and equal treatment under the law has been a highly controversial topic, and remains so today. This is no different in the world of academics, especially regarding the implementation of affirmative action in the college admissions process. Proponents of affirmative action believe it is necessary to remedy past discrimination and promote a diverse educational experience.² Conversely, opponents believe race-conscious considerations serve as unequal treatment and result in inequitable outcomes.³ These critics often advocate for universities to prioritize diversity of thought and life experience over diversity based on innate traits.⁴ After a plethora of highly-contested legal battles concerning affirmative action and its constitutionality, the Court has again placed it into their crosshairs. The Supreme Court is currently deciding two cases, Students for Fair Admissions v. Harvard College and Students for Fair Admissions v. University of North Carolina, which pose a significant threat to the use of affirmative action for admission purposes.⁵

This article explores affirmative action and its place in academics. Section II provides background on the Supreme Court’s affirmative action jurisprudence. Section III postulates the use of affirmative action for the purposes of college admissions violates the Equal Protection Clause and Title VI. Finally, Section IV concludes by calling for the Supreme Court to hold affirmative action unconstitutional and for universities to tailor their admission policies to achieve diversity based on viewpoints and life experiences.

II. Background

The United States has passed constitutional amendments and numerous statutes to prevent discrimination.⁶ The Equal Protection Clause of the Fourteenth Amendment of the United States Constitution states that no State shall deny any citizen equal protection of the law.⁷ Title VI of the Civil Rights Act of 1964 (“Title VI”) declares that any program or activity receiving federal funds shall not discriminate on the grounds of race, color, or national origin.⁸

A. Affirmative Action Jurisprudence

The Supreme Court first addressed the constitutionality of affirmative action for college admissions purposes in Regents of the University of California v. Bakke.⁹ The medical school at University of California, Davis had a special admissions program that reserved sixteen percent of the available seats for certain minority groups.¹⁰ A Caucasian male was denied acceptance while applicants with “significantly lower” admission scores were admitted via the special program.¹¹ He sued alleging the program violated Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment.¹² In a plurality opinion, the Court held that racial quotas violated the Fifth and Fourteenth of the Constitution, but universities may use race or ethnicity as a factor for college admissions purposes.¹³ The Court determined strict scrutiny applied when a college admission policy factored an individual’s race or ethnic background; therefore, such policy must be narrowly tailored to serve a compelling government interest.¹⁴ Justice Powell made three significant observations: (1) the Constitution does not support the notion individuals must suffer impermissible burdens in order to enhance the societal standing of their ethnic group, (2) preferential programs may reinforce common stereotypes that certain groups are incapable of achieving success without special treatment based on innate traits, and (3) it would inequitable to force innocent persons to bear the burdens of redressing grievances not of their making.¹⁵ Nevertheless, the Court posited a state may have a substantial interest in factoring race and ethnic origin for admissions purposes, provided that the program was properly devised and maintained other competitive considerations.¹⁶

In 2003, the Court reaffirmed that the utilization of race as a predominant factor for college admissions, absent consideration of other individual characteristics, violates the Equal Protection Clause of Fourteenth Amendment and Title VI.¹⁷ In Gratz, the issue was whether the University of Michigan’s use of racial preferences in undergraduate admissions violated the Equal Protection of the Fourteenth Amendment.¹⁸ The selection process for admittance was based on a point total of 150 and underrepresented minorities (African-Americans, Hispanics, and Native Americans) automatically received twenty points for such status.¹⁹ Two Caucasian students, who would have been admitted if they were an underrepresented minority, filed a class-action action against the University alleging the university violated the Fourteenth Amendment and Title VI.²⁰ The Court held that the University of Michigan’s admissions policy violated the Equal Protection Clause and Title VI, because the university failed to narrowly tailor their use of race as a factor to achieve their compelling interest in diversity.²¹ Justice Rehnquist echoed Justice Powell’s opinion in Bakke by emphasizing the importance of individualism and how it contributes to the unique setting of higher education.²² The Court determined that the policy implemented by the university did not constitute an individualized consideration, because the automatic increase made race a decisive factor for every minimally qualified underrepresented minority applicant.²³ In Grutter, a case decided on the same as Gratz, upheld the use of racial preferences.²⁴ As a part of the majority opinion, Justice O’Connor forecasted that such preferences will no longer be necessary in twenty-five years.²⁵

B. New Challengers Emerge

Students for Fair Admissions v. Harvard centers around alleged discrimination against Asian-American applicants.²⁶ Students for Fair Admissions (“SFFA”) is a nonprofit composed of parents and students who advocate against the use of affirmative action for college admission purposes.²⁷ SFFA alleges that Harvard College’s race-conscious admissions process violates Title VI.²⁸ Admissions officers take into account an applicant’s race when rating the overall score, which serves as a basis for a tip.²⁹ Tips are plus factors that may bump an applicant into Harvard’s admitted class.³⁰ The First Circuit stated the compelling interest Harvard intends on achieving by using affirmative action is: (1) training future leaders in the public and private sectors; (2) preparing graduates and Harvard itself to adapt to an increasingly pluralistic society; (3) enhancing the education of Harvard’s students through diversity; and (4) facilitating new knowledge resulting from diverse outlooks.³¹ The court held that Harvard did not use race as a mechanical plus factor or engage in racial balancing.³² No workable alternative to promoting diversity was available, therefore they did not violation the Equal Protection Clause.³³

Students for Fair Admissions v. University of North Carolina is nearly indistinguishable from the lawsuit against Harvard, aside from the fact that it involves a public university.³⁴ SFFA contends that the University of North Carolina’s admission process uses race-conscious factors to the detriment of Caucasian and Asian students.³⁵ Further, they argue the desired level of diversity is achievable via race-neutral alternatives without a dramatic sacrifice in the quality of education or the benefits derived from a diverse student-body population.³⁶ The Middle District of North Carolina held that the University’s admission policy: (1) enhanced student diversity, (2) mandated that race is one of many plus factors weighed against all other information, and (3) was flexible enough to allow the admissions team to assess all the qualities of each candidate.³⁷

III. Discussion

Affirmative action could be standing on shaky ground after former President Donald Trump successfully nominated three Supreme Court Justices. Such speculation is about to be put to rest, as the SFFA cases against Harvard and North Carolina likely signify the demise of the use of affirmative action in college admissions. Justices Thomas, Alito, and Roberts were dissenters in Fisher II, which upheld the University of Texas’s use of race conscious factors.³⁸ Justices Gorsuch, Kavanaugh, and Barrett are expected to join the three former Justices in overturning Grutter, thus outlawing affirmative action in college admissions.³⁹ Regardless of the presumed political make-up of the Court, the Constitution and Title VI do not permit discrimination or unequal protection on the basis of race or ethnicity.⁴⁰

A. Grutter Should Be Overruled

The SFFA cases provide an opportunity for the United States to effectuate a race-neutral standard for the purpose of higher education admissions. To lower the standard for one class of people is to raise the standard for another class.⁴¹ University admissions represent a zero-sum game, if one individual gets a seat via affirmative action then that means one person lost a seat due to affirmative action.⁴² As Justice Powell stated in his opinion in Bakke, it would be unjust to impose burdens on innocent individuals for the purposes of redressing the grievances of others.⁴³ Therefore, it is of the utmost importance to prohibit the unequal treatment of individuals on the basis of their race or ethnicity, regardless of the justification for such treatment.

The application of affirmative action in higher education juxtaposes the objectives of the Fifth and Fourteenth Amendments and Title VI. For hundreds of years the Fifth and Fourteenth Amendments were shown to be fruitless, constituting nothing more than words on paper, as government at the local, state, and federal level failed to impart equal protection under the law until the Supreme Court forced their hand.⁴⁴ To provide preference or “tips” on the basis of race or ethnicity, with all else being equal, is to discriminate against all other individuals who do not possess such innate traits. Consider two students, one Asian-American and the other African-American, each are identical across all other admissions factors. The university gives a “tip” to the African-American applicant, which results in their admittance. The Asian-American applicant does not receive a “tip” and is denied as a result. It would follow that admittance may or may not be given because of the applicant’s race.⁴⁵ This constitutes discrimination on the basis of race in violation of Title VI.⁴⁶ Therefore, preference for university admission given to an applicant because of the individual’s race or ethnicity proves to be a clear violation of Title VI and the Fifth and Fourteenth Amendments.

B. The Harvard Hypocrisy

Harvard University has long history of providing unequal treatment to individuals on the basis of ethnicity, class, and race.⁴⁷ It is rather evident that Harvard does not mind protecting its own interest at the expense of applicants who lack preferential status. In additional to providing “tips” for individuals belonging to certain racial groups, Harvard maintains “tips” for athletes, legacies, applicants on the dean’s interest list, and children of faculty or staff.⁴⁸ Such applicants constituted less than five percent of all applicants, but account for over thirty percent of all admitted students.⁴⁹ Therefore, applicants who do not belong to one or more of these classes are put at a disadvantage before their application has been reviewed. Harvard does not appear to be diverse, at least politically, considering eighty percent their students supported Hillary Clinton compared to only six percent for Donald Trump in the 2016 presidential election.⁵⁰ The faculty does not appear to be diverse politically either, as ninety-one percent of all campaign contributions from Harvard faculty went to Clinton.⁵¹ Comparatively, the general population supported Clinton forty-eight percent to Trump’s forty-six percent.⁵² Harvard also lacks economic diversity, considering sixty-seven percent of their students come from families in the top twenty percent of income.⁵³ “Tips” based solely on economic status would benefit those individuals who have been hindered by growing up in poverty, without consideration of race or ethnicity. Nevertheless, it would prove beneficial for those same individuals who currently receive “tips” for their racial status.⁵⁴ If Harvard is truly serious about diversity on campus, they should eliminate preferred classes of individuals who receive “tips” based on legacy or racial status, and open those spots to students who possess unique life experiences, viewpoints, and come from low socio-economic backgrounds.

IV. Conclusion

The Constitution and Title VI are unambiguous: every individual, regardless of race or ethnicity, is entitled to equal protection under the law and shall not be discriminated against on such basis.⁵⁵ To permit the continued use of affirmative action is to turn a blind-eye on an issue that has plagued this country since its founding. Therefore, the Supreme Court must outlaw the use of racial or ethnic preferences for the purposes of college admissions.

Cover Photo by Gül Işık on Pexels

Grant A. Williams

Grant Williams is a 2L from Kingsport, TN. Grant’s primary interests within the legal field include antitrust, securities regulation, and M&A. After law school, Grant anticipates pursuing a career as a transactional attorney and antitrust litigator. During his free time, Grant enjoys fishing, golfing, working out, playing guitar, listening to country music, and spending time with his friends and family.

References

1
Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting), overruled by Brown v. Bd. of Ed. of Topeka, Shawnee Cnty., Kan., 347 U.S. 483 (1954).
2
Striving for Equal Opportunity: Why The ACLU Supports Affirmative Action, ACLU (Feb. 17, 2023), https://www.aclu.org/other/striving-equal-opportunity-why-aclu-supports-affirmative-action.
3
David Sacks & Peter Thiel, The Case Against Affirmative Action, Stanford Mag. (Sept.–Oct. 1996), https://stanfordmag.org/contents/the-case-against-affirmative-action.
4
Id.
5
Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 980, F.3d 157 (1st Cir. 2020), cert. granted, (No. 20-1199); Students for Fair Admissions v. Univ. of N.C., 567 F. Supp.3d 580 (M.D.N.C. 2021), cert. granted, (No. 21-707).
6
E.g., U.S. Const. amends. V, XIV; Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d.
7
U.S. Const. amend. XIV, § 1.
8
Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d.
9
Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).
10
Id. at 275.
11
Id. at 277.
12
Id. at 276–78.
13
Id. at 320.
14
Id. at 299.
15
Id. at 298.
16
Id. at 320.
17
Gratz v. Bollinger, 539 U.S. 244 (2003).
18
Id. at 250.
19
Id. at 254–56.
20
Id. at 252–55.
21
Id. at 276.
22
Id. at 271.
23
Id. at 271–72.
24
Grutter v. Bollinger 539 U.S. 306, 308 (2003).
25
Id. at 309–10.
26
Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 980, F.3d 157 (1st Cir. 2020), cert. granted, (No. 20-1199).
27
Id. at 164.
28
Id. at 163.
29
Id. at 169.
30
Id. at 170.
31
Id. at 186.
32
Id. at 189–95.
33
Id.
34
Students for Fair Admissions, Inc. v. Univ. of N.C., 567 F. Supp.3d 580 (M.D.N.C. 2021), cert. granted, (No. 21-707).
35
Id. at 586–587.
36
Id.
37
Id. at 594–95.
38
Fisher v. Univ. of Tex., 579 U.S. 365 (2016) (finding that the University of Texas satisfied their burden of proving the need for a race-conscious undergraduate admissions program to achieve increased diversity on campus).
39
Greg Stohr, Zoe Tillman & Jordan Rubin, College Affirmative Action in Doubt After Supreme Court Fray (1), Bloomberg L. (Oct. 31, 2022, 5:47 PM), https://news.bloomberglaw.com/us-law-week/supreme-court-justices-battle-over-race-in-college-admissions.
40
U.S. Const. amend. XIV, § 1; Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d.
41
See Noah Smith, Why Affirmative Action Had to Go, Noahpinion (Nov. 1, 2022), https://noahpinion.substack.com/p/why-affirmative-action-had-to-go.
42
See Transcript of Oral Argument at 11, Students for Fair Admissions, Inc. v. Univ. of N.C., cert. granted, (No. 21-707).
43
Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 298 (1978).
44
See Brown v. Bd. of Educ. of Topeka, 349 U.S. 294 (1954) (invalidating laws prohibiting the desegregation of public schools); Loving v. Virginia, 388 U.S. 1 (1967) (invalidating laws prohibiting interracial marriage).
45
See Bostock v. Clayton Cnty., Ga., 140 S. Ct. 1731, 1741–42, (2020) (J. Gorsuch discussing but-for causation when establishing a violation of Title VII of the Civil Rights Act of 1991).
46
See id.
47
See Delano R. Franklin & Samuel W. Zwickel, Harvard Asks Court to Exclude Evidence of Past Anti-Semitism in Admissions Trial, Harvard Crimson (Sept. 19, 2018), https://www.thecrimson.com/article/2018/9/19/admissions-lawsuit-discrimination/; Marcia Synott, The Half-Open Door: Discrimination and Admissions at Harvard, Yale, and Princeton, 1900-1970, (1st ed. 2010); Anemona Hartocollis, The Major Findings of Harvard’s Report on Its Ties to Slavery, N.Y. Times (Apr. 28, 2022), https://www.nytimes.com/2022/04/26/us/harvard-slavery-report.html.
48
Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 980 F.3d 157, 171 (1st Cir. 2020), cert. granted, (No. 20-1199).
49
Id.
50
Richard D. Kahlenberg, Harvard’s Class Gap, Harvard Mag. (May–June 2017), https://www.harvardmagazine.com/2017/05/harvards-class-gap.
51
Id.; Natalie L. Kahn, ‘An Endangered Species’: The Scarcity of Harvard’s Conservative Faculty, Harvard Crimson (Apr. 9, 2021), https://www.thecrimson.com/article/2021/4/9/disappearance-conservative-faculty/.
52
2016 Presidential Election Results, N.Y. Times (Aug. 9, 2017), https://www.nytimes.com/elections/2016/results/president.
53
Economic Diversity and Student Outcomes at Harvard University, N.Y. Times, https://www.nytimes.com/interactive/projects/college-mobility/harvard-university (last visited Feb. 24, 2023).
54
Ethic and Racial Minorities & Socioeconomic Status, Am. Psych. Ass’n, https://www.apa.org/pi/ses/resources/publications/minorities (last visited Feb. 20, 2022) (stating thirty-nine-percent of African-American and thirty-three-percent of Latino children live in poverty compared to fourteen-percent of non-Latino White and Asian children).
55
U.S. Const. amends. V, XIV; Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d.