Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (600 U.S. ___(2023))
The Supreme Court releases it opinions (rulings) for cases on the court’s website. This case got a lot of attention in the media earlier this summer. As is sometimes the case I was asked to several questions by those that know me such as: why did the court rule that way? what were the justices thinking? what does that mean? is the court overreaching? I will admit right away I am not in the court, I do not work in the court and that means I do not know what the Justices were thinking. However, I can explain the why the court ruled the way it did because the Justices explain it in the slip opinion that is published. I have put the opinion for this specific case on the page for your reference. Now the 1st thing you should notice is that this is 237 pages, even at 1 column with footnotes that is a lot of reading. For any news groups that within minutes was giving “detailed” analysis of what the Justices wrote, I would like to know how you read that many pages that fast. The Supreme Court does not release opinions early to the press.
Now onto my analysis. Let me be clear I am not trying to convince anyone that the ruling was right or wrong. I am just analyzing what evidence the Justices documented in their opinion that I thought was not mentioned or discussed by those in the news.
The Supreme Court is part of the 3 branches of government and the purpose of the Supreme Court is not to create laws, the purpose is to review laws to see if the law is in violation of the constitution. This is important because there are several members of congress and news groups stating that the Supreme Court said affirmative action is illegal or implied the Justices are overstepping their roles. To be clear the Justices the specific case in front of them, analyzed those facts (and not other factors), and stated that the way that Harvard and UNC applied affirmative action was unconstitutional. The opinion lists what is needed for affirmative action to be done in a constitutional manner, and that Harvard and UNC did not meet these requirements.
I am going to focus on a few points that I do not think the media focused on. Both Harvard and UNC admitted in written documents or during oral arguments to the Supreme Court things that on their face value should give many people pause on how these two schools were using race when reviewing student applications.
1. Harvard acknowledged on page 42 that the way it thinks about the use of race in its admissions process “is the same now as it was” nearly 50 years ago. I am not able to say what Harvard was like in the 1970’s (because I was not born yet), I am just pointing out that in nearly 50 years for the admission process to not have evolved is at face value concerning. In that same paragraph UNC suggested that it might soon use race to a GREATER extent that it currently does. On its face this comment makes me pause, and hopefully after reading the next few points it will make you pause as well.
2. The racial categories used are not inclusive and the way they were applied did not allow for an increase of students in these categories to attend. Yes, you read that last part right and I address it more in point 3. On page 33 the Justices explained that the categories are imprecise and some are overbroad. The term Hispanic for instance was not able to be defined as it is a shifting category that reflects cultural norms (meaning to one person it could include Spain, Portugal, Puerto Rico, Mexico, or Peru but another person may not consider all those as Hispanic) and there was no category for Middle Eastern countries. The counsel for UNC admitted in oral arguments to the Supreme Court that he did not know how a student from Jordan, Iran, or Egypt would be classified. On page 112 it is pointed out that the Asian category lumps together Chinese, Korean, Japanese, Indian, Pakistani, and Bangladeshi into this category. While I am not “Asian” I suspect these countries and their inhabitants would say they are different from each other. This is highlighted in that same paragraph that Native Hawaiian is a different category from Other Pacific Islander. The categories really do not identify what a person brings to the table and how different every applicant is. The categories used, or not used, are a concern when you also consider how the categories are used by the colleges.
3.(a) UNC admitted that they compare the racial categories to a specific percentage. On page 40 it was explained UNC uses the racial categories to compare to the percentage enrolled to the percentage of that category within the general population in North Carolina. Without getting into a discussion about how diverse North Carolina is or is not, think of the Native Hawaiian who is applying to UNC. This kid is being compared to the percentage Native Hawaiian people living in North Carolina to determine if the student population has a lower population than that of the general population of North Carolina, it might be an unfair comparison. The kid from Jordan or Egypt sorry there is no category for comparison. The Equal Protection Clause in the Fourteenth Amendment says that you cannot benefit one race at the expensive of another. I am not sure how comparing racial categories, and some of the categories being too broad or not included at all, is not benefiting one race at the expensive of another.
3. (b) Harvard admitted that they compare the racial categories to the previous year’s admission to make sure there is no significant drop off of a racial category (also want to note that this includes white). On page 39 it was pointed out that Harvard can show this numerical commitment and that the admitted classes of 2009-2018 black students represented a tight band of 10-11.7%. There is even a chart that shows how Harvard had African-American, Hispanic, and Asian-American students stay within a 2-3 percentage range for all 9 years. This may reinforce my concern about Harvard’s statement that they have not changed the way they think about and use race in their admission process. As I was explaining this concern to a friend, she pointed out that if there can never be a significant drop off of a racial category the flip side is that there cannot be an increase for students in that racial categories either.
On page 33 there is a sentence that is a great example of why the racial categories being too broad and not inclusive matters. “By focusing on underrepresentation, respondents would apparently prefer a class with 15% of students from Mexico over a class with 10% of students from several Latin American countries, simply because the former contains more Hispanic students than the later.” By caring more about a number of students being in a specific category, it sounds more like the colleges are using a quota system without calling it a quota.
4. At this point I would like to remind everyone that the opinion did not say affirmative action is illegal, it said Harvard’s and UNC’s admissions programs violate the Equal Protection Clause of the Fourteenth Amendment. These two colleges did not meet the requirements set in a previous rulings that permitted race-based college admissions only within the confines of narrow restrictions. The narrow restrictions are: such admissions programs must comply with strict scrutiny, may never use race as a stereotype or negative, and must – at some point – end. Harvard’s and UNC’s admission programs failed to meet any of these criteria. The reason this is an important distinction is that had the admission programs met all these requirements there could have been a different ruling.
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