Courtney Kramer
After 30 years, the U.S. Supreme Court ruled that race cannot be used as a factor in college admissions. The 6-3 affirmative action opinion ultimately concluded that allowing an applicant’s race to determine if a student should be admitted to a university violated the 14th Amendment of the Constitution. The University System of Georgia immediately issued a response quoted below.
This ruling comes after Students for Fair Admissions (SFFA), a nonprofit organization whose purpose is “to defend human and civil rights secured by law, including the right of individuals to equal protection under the law” filed separate lawsuits against Harvard and the University pof North Carolina. SFFA argued that Harvard and UNC’s race-based admissions programs violate, respectively, Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment. Ultimately making its way to the nation’s highest court, oral arguments were held in October 2022 and the opinion was officially issued yesterday.
Racial discrimination in public education has long been held to be unconstitutional and many Supreme Court cases harped on the fact that the core purpose of the equal protection clause is to ensure that government-imposed discrimination based on race is done away with. Chief Justice John Roberts reiterates in the ruling that:
Eliminating racial discrimination means eliminating all of it. Accordingly, the Court has held that the Equal Protection Clause applies “without regard to any differences of race, of color, or of nationality”— it is “universal in [its] application.” 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, 438 U. S. 265, 289–290.
In other words, the way to end discrimination is to end discrimination. Georgia’s own Justice Clarence Thomas predicted back in 2003 that race-based affirmative action in higher education will be unconstitutional in 25 years, and he was spot-on. Thomas ended his concurring opinion with a statement which seems to be lost on those who disagree with this ruling:
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.
Those words will surely resonate across party lines for decades to come but may take time for many to see as critics criticize the ruling as “political.” However, readers should understand the reason why this court ruled the way that it did. It has long been held that racial classifications by the government–including race-based affirmative action programs– are subject to strict scrutiny, meaning that unless racial classifications are narrowly tailored to further a compelling government interest, they are constitutionally prohibited. Even if they are narrowly tailored, a deviation from the norm of equal treatment of racial and ethnic groups must be a temporary matter limited in time.
Harvard and UNC offered a grab bag of interests to justify their programs, spanning from “training future leaders in the public and private sectors” to “enhancing appreciation, respect, and empathy,” with references to “better educating [their] students through diversity” in between. The chief succinctly states that the court instead found both programs implemented by Harvard and UNC “lacked sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points. We have never permitted admissions programs to work in that way, and we will not do so today.”
The official statement from the University System of Georgia further underscores the fact that under Title VI of the Civil Rights Act and 14th Amendment Equal Protection Clause, it is never permissible to say “yes” to one person and then say “no” to another even in part due to the color of someone’s skin. The USG announced that “[a]t all 26 University System of Georgia institutions, race or ethnicity is not a determining factor in admissions. USG follows the law with regards to the admission of students.”
Many court watchers also say that it will be eye-opening to see the responses from universities that have implemented race-based admission processes and whether the new law of the land will in fact be upheld.
Courtney A. Kramer is a constitutional and election law attorney practicing at Smith & Liss, LLC in Atlanta.
