Court Ends Race-Based Admissions

When history reviews the U.S. Supreme Court opinions by Chief Justice John Roberts, his June 29, 2023, opinion will be among his more consequential.

This opinion is also vintage Roberts in that:

¯ One needn’t read any of his sentences twice to understand them.

¯ It’s fairly easy for the laity–that is, non-lawyers–to read, and

¯ He carefully and masterfully draws on history and Supreme Court precedent and, based on them, reaches a conclusion.

This opinion is in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, and Students for Fair Admissions, Inc. v. University of North Carolina.

Harvard is private, and Carolina is public.

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Roberts’s opinion–in which Justices Clarence Thomas, Samuel Alito, Neal Gorsuch, Brett Kavanaugh, and Amy Coney Barrett join–takes race-based college and university admissions off the table, and is a ringing reaffirmation of–to borrow a phrase from the Fourteenth Amendment–“the equal protection of the laws.”

“To its proponents, the Equal Protection Clause represented a ‘foundation(al) principle’–‘the absolute equality of all citizens of the United States politically and civilly before their own laws.’ … As soon-to-be President James Garfield observed, the Fourteenth Amendment would hold ‘over every American citizen, without regard to color, the protecting shield of law.’

“Despite our early recognition of the broad sweep of the Equal Protection Clause, this (c)ourt–alongside the country–quickly failed to live up to the (c)lause’s core commitments. For almost a century after the Civil War, state-mandated segregation was in many parts of the (n)ation a regrettable norm. This (c)ourt played its own role in that ignoble history, allowing in Plessy v. Ferguson the separate but equal regime that would come to deface much of America.

“(F)inally in Brown v. Board of Education … , we overturned Plessy for good and set firmly on the path of invalidating all de jure racial discrimination by the (s)tates and (f)ederal (g)overnment.

“(T)he right to a public education ‘must be made available to all on equal terms. As the (Brown) plaintiffs … argued, “no (s)tate has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.

“Brown required schools to admit students ‘on a racially nondiscriminatory basis.’ The time for making distinctions based on race had passed. Brown, the (c)ourt observed, ‘declar(ed) the fundamental principle that racial discrimination in public education is unconstitutional.

“So too in other areas of life. … (Other) cases … ‘denied the constitutionality of measures (that) restrict the rights of citizens on account of race.’

“These decisions reflect the ‘core purpose’ of the Equal Protection Clause: ‘do(ing) away with all governmentally imposed discrimination based on race.’

“Eliminating racial discrimination means eliminating all of it. And the Equal Protection Clause, we have accordingly held, 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. … If both are not accorded the same protection, then it is not equal.’

“Outside the circumstances of these cases, our precedents have identified only two compelling interests that permit resort to race-based government action. One is remediating specific, identified instances of past discrimination that violated the Constitution or a statute. The second is avoiding imminent and serious risks to human safety in prisons, such as a race riot.

“Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people … . That principle cannot be overridden except in the most extraordinary case.”

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Students for Fair Admissions “involve(s) whether a university may make admissions decisions that turn on an applicant’s race.

“(W)e have permitted race-based admissions only within the confines of narrow restrictions. University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and–at some point–they must end. (Harvard’s and Carolina’s) admissions systems–however well intentioned and implemented in good faith–fail each of these criteria. They must therefore be invalidated under the Equal Protection Clause of the Fourteenth Amendment.”

The 70th anniversary of Brown, a decision in which Justice Robert Jackson participated, is May 17, 2024. At 7 p.m. Wednesday, May 8, Dr. Randy Elf will lead a discussion on Brown at the Fenton History Center, 67 Washington St., Jamestown. The discussion is free and open to the public, will last about an hour, and is part of the 2024 Fenton History Center Lecture Series.



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