Here’s my quick summary:
Earlier Court decisions had allowed race as a category to factor into admissions decisions, but only if it survived “strict scrutiny”—that there was a compelling government interest, and that the compelling interest was narrowly tailored. (Regents of University of California vs Bakke, 1978 ). Justice Powell, writing for the majority, held that diversity was a legitimate educational goal for a university, but because “racial and ethnic distinctions of any sort are inherently suspect, and antipathy toward them was deeply rooted in our nation’s constitutional and demographic history,” these programs were limited: universities could not use racial “quotas,” nor could they use race as a “negative” to exclude individuals from consideration. Race could only operate as a “plus” for an applicant.
The Bakke decision continued to be litigated in the lower courts, such that the issue found its way back to the Supreme Court (Grutter vs. Bollinger, 2003). Grutter re-affirmed that student diversity was a legitimate justification for race-based admissions and also re-affirmed the limitations that Bakke decision imposed. Those limitations, Grutter stated, were intended to guard against two dangers that all race based government action portends: first, the risk of stereotyping (assuming that all minorities will always or consistently express some minority viewpoint on any issue) and that race will be used not only as a “plus” but a negative—to discriminate against those against racial groups that were not the beneficiaries of a race-based preference. Finally, Grutter said, that at some point, race-based admissions programs should end: “Enshrining a permanent justification for racial preferences would offend” the Constitutions’s unambiguous guarantee of equal protection. Accordingly, it expressed the expectation that in 25 years, the “use of racial preferences will no longer be necessary to further the interest approved today.”
Fast forward to the present, when Harvard and the University of North Caroline were sued for their raced based admission preferences. Chief Justice Roberts, writing for the majority, ruled that the two universities’ race-based admissions policies did not abide by these earlier Court limitations:
“Respondents' race-based admissions systems fail to comply with Grutter’s twin commands that race may never be used as a “negative” and that it may not operate as a stereotype…. Respondents’ assertion that race is never a negative factor in their admissions program cannot withstand scrutiny. College admissions are zero-sum, and a benefit provided to some applicants but not to others necessarily advantages the former at the expense of the latter.”
As evidence of the "zero-sum" effect, the Court points to the impact of racial preference for blacks on Asian applicants. At North Carolina, Roberts notes that in the top decile of applicants, 80% of black applicants are admitted, vs. 70% of Asian applicants. In the second highest decile, 83% of black applicants are admitted, vs. 47% of Asian applicants. And in the third decile, 77% of black applicants are admitted vs. just 34% of Asian applicants.
Further, Roberts says race-based admissions programs require stereotyping. The justification for race-based admissions is that they bring a diversity of thought and perspective into the educational community. But Roberts notes “when a university admits students on the basis of race, it engages in the offensive and demeaning assumption that students of a particular race, because of their race, think alike.”
Finally, Roberts notes that though 20 years had passed since Grutter, there was nothing which indicated that raced based admissions policies would end in five more years, as suggested by the Grutter decision.
Accordingly, the Courts voted 6-3 in SFA vs. Havard to eliminate race as a general category for admissions decisions. It is important to emphasize race is no longer a factor as a category, I believe. The Courts note that as a category, race doesn’t always predict disadvantage, as in the case of upper or middle class minorities whose children may go to excellent private schools, with access to A.P. courses, tutors, etc. Per diversity goals, prior to this decision, those students could receive preference over other ethnicities, even if applicants from those other ethnicities were poor or disadvantaged, without access to the same educational opportunities. That outcome, Roberts writes, is repugnant to the Equal Protection Clause. But is IS OK, Roberts explicitly states, to consider the impact race may have had on that individual, if racism has played a factor in his or her life:
“Nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life as long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university. (But) many universities have 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.”
Judge Clarence Thomas, in a concurring opinion, writes:
“Racialism simply cannot be undone by different or more racialism. Instead, the solution announced in the second founding is incorporated into our Constitution: that we are all equal, and should be treated equally before the law without regard to race. Only that promise can allow us to look past our differing skin colors and identities and see each other for what we truly are: individuals with unique thoughts, perspectives and goals, but with equal dignity and equal rights under the law.”
Critics of this Court's decision have been particularly vicious of Judge Thomas, accusing him of hypocrisy, saying “he’s burning down the very ladder which allowed him to become only the second black man to be on the Supreme Court.” (Steven A. Smith, et al). But those critics have either not read this decision or are simply unwilling to apply it to Thomas. Thomas was the second of three children, born to a farm worker and domestic helper in rural Georgia, both of whom spoke Gullah as their first language. They were so poor, they had no indoor plumbing. His father left him when he was two, and after a fire burned down their home, he was taken in and raised by his grandparents, also farmers. At the age of ten, he began helping his grandparents on their farm, and he worked his way up the ladder from there, prioritizing his education. Overcoming those disadvantages reveals a quality of character which the Courts explicitly say is a legitimate set of facts for a university to consider.
In essence, the Court is saying that applicants should be judged "by the content of their character, not the color of their skin" to use Martin Luther King's elegant phrase. Does racism still exist in America? Sadly, yes. Does racism suppress some students' opportunities for higher level educational achievement? Sadly, of course it does. But does racism have equal impact on everyone within that same race, regardless of socio-economic standing or family background? Of course not. When and where it has impacted someone, the Courts affirm the right of the applicant to explain how they've been shaped by it and grown from it, and the right of the universities to take these statements into account in their assessment of the individual's character.
The Courts are insisting that applicants be judged individually, according to the unique circumstances of their lives, rather than by a blanket category. That distinction seems like a step forward for everyone.
