[guest post by JVW]
In a decision that had generally been expected, but certainly was not a sure thing, the Supreme Court ruled that efforts by both Harvard and the University of North Carolina to use race as a determining factor in granting admissions were prohibited by the Equal Protections Clause of the Fourteenth Amendment. The decision split along the traditional ideological lines with the six Republican nominees in the majority and the three Democrat nominees in the minority. Associate Justice Ketanji Brown Jackson did not take part in the Harvard decision, recusing herself since she had previously served on the Harvard Board of Overseers.
One interesting aspect of this case is that it provided the public with a chance to peek under the hood of the Harvard admissions process. In the majority ruling, Chief Justice John Roberts described it as so:
At Harvard, each application for admission is initially screened by a “first reader,” who assigns a numerical score in each of six categories: academic, extracurricular, athletic, school support, personal, and overall. For the “overall” category — a composite of the five other ratings — a first reader can and does consider the applicant’s race. Harvard’s admissions subcommittees then review all applications from a particular geographic area. These regional subcommittees make recommendations to the full admissions committee, and they take an applicant’s race into account. When the 40-member full admissions committee begins its deliberations, it discusses the relative breakdown of applicants by race. The goal of the process, according to Harvard’s director of admissions, is ensuring there is no “dramatic drop-off” in minority admissions from the prior class. An applicant receiving a majority of the full committee’s votes is tentatively accepted for admission. At the end of this process, the racial composition of the tentative applicant pool is disclosed to the committee. The last stage of Harvard’s admissions process, called the “lop,” winnows the list of tentatively admitted students to arrive at the final class. Applicants that Harvard considers cutting at this stage are placed on the “lop list,” which contains only four pieces of information: legacy status, recruited athlete status, financial aid eligibility, and race. In the Harvard admissions process, “race is a determinative tip for” a significant percentage “of all admitted African American and Hispanic applicants.”
UNC has a similar screening process, with the applicant’s race being one of the earliest factors in the initial evaluation rather than as a secondary benefit used to supplement an otherwise qualified applicant’s case for admission.
The Chief Justice then outlines the long history of racial discrimination in the Reconstruction era and beyond, especially as to how it pertained to education. His narrative tells the story about ongoing attempts to end racial discrimination, and concludes strongly, echoing his famous dictum that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race”:
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.”
I removed the citations in the above paragraph, but the last quote is from the majority decision in the 1978 Supreme Court case Regents of University of California v. Bakke in which hard quotas for minority student admissions were outlawed. And the Chief Justice’s final conclusion gets straight to the heart of the matter in a clear and understandable way:
Because Harvard’s and UNC’s admissions programs lack 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, those admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. At the same time, nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university. Many universities have for too long wrongly concluded that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned, but the color of their skin. This Nation’s constitutional history does not tolerate that choice.
I don’t really have the time or inclination this morning to slog through the dissents from the left-wing justices, so if anyone wants to take on that task it would be a great addition to the comments section.