The Supreme Court’s Decision in FAIR v. Harvard – Part 1

The broad implications of its striking down race-based decisions as violating the Constitution’s Equal Protection Clause.

In June, 2023, the United States Supreme Court, in a 6-3 decision, struck down race-based decisions as violating the Constitution’s Equal Protection Clause, which provides that people must enjoy the “equal protection of the laws.”  The case, titled Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, will cause sweeping changes to school and business race-based admissions, program, and hiring policies.

Chief Justice John Roberts wrote the majority opinion, which five other Justices joined in full. 

The central summary quote from that decision is “Eliminating racial discrimination means eliminating all of it.”

That majority decision begins by stating “As we recounted in striking down the State of Virginia’s ban on interracial marriage 13 years after Brown [v. Board of Education], the Fourteenth Amendment “proscri[bes] … all invidious racial discriminations.” Loving v. Virginia, 388 U. S. 1, 8 (1967) … We accordingly took up the matter again in 2003, in the case Grutter v. Bollinger, which concerned the admissions system used by the University of Michigan law school … [T]he Court held that … Nor still could [a college] desire “some specified percentage of a particular group merely because of its race or ethnic origin.”

That statement will reverberate nationwide, and it strikes to the core of own local school board’s five-year “strategic plan,” entitled the 2025 Equity for All Strategic Plan.  This plan is repeatedly cited in boilerplate language in official school board documents, which generally include a section titled “2025 Strategic Plan Goal,” which is filled in to explain how whatever policy being discussed furthers the plan’s stated goal of “educational equity.”  That plan defines “educational equity” as follows: “Positive school outcomes are distributed equitably proportionally across all demographic and identity groups. Negative outcomes and disproportionality are reduced for all groups.”

That is, this “strategic plan” explicitly states it is to distribute educational benefits (“positive school outcomes”) strictly in conformance with the demographic percentages of racial “identity groups” who happen to live in the area.  In a previous essay, I explored the terrible ramifications of this policy if it were administered as written, but now the U.S. Supreme Court has determined that it is also a violation of the U.S. Constitution’s Equal Protection Clause.  As the majority decision in the FAIR v. Harvard case states, quoting some of its prior opinions, the Equal Protection Clause prohibits the use of race-based metrics to meet “strict numerical benchmarks,” a “precise number or percentage,” or a “specified percentage.”  The majority opinion goes on to make clear that it “is well established” that “outright racial balancing” is “patently unconstitutional.” The 2025 Equity for All Strategic Plan sets out a race-based “specified percentage” and is also therefore “patently unconstitutional.”

Further, one particular local public school program, an “Early College” program, has been described by a school board member as applying (or not applying) to students based on their skin color, something which is also patently unconstitutional.  As this school board member writes:

One of the more exciting updates we’ve received this quarter was on our Early College program. Starting with the incoming 9th grade class in 2024, 100 students will be selected as the first cohort for the Early College High School program. Cohorts will be selected to reflect ACPS demographics, including 70% students of color … Students will simultaneously earn their high school diploma and graduate with an associates degree at no cost to them from Northern Virginia Community College (NOVA) that will fully transfer to the four-year university partners.

Of course, the mission of every school system should be to aim to help all students achieve as much as they can academically. But that is explicitly not the mission of the Equity for All Strategic Plan, which aims to distribute positive school outcomes strictly in proportion to demographic race percentages in the local community. If that were not clear enough from the Plan's clear definition of “educational equity," just look at how local school administrators describe a situation in which a certain group (defined by their skin color) achieves positive school outcomes in excess of their demographic percentage: those positive school outcomes are deemed to be "overrepresented," as though such achievements are somehow out of line with the school system's expectations.

Whatever inputs are going into the individual achievements of each student, each student's achievements stand on their own and don't detract from the achievements of other students, making the use of the term "over-represented" in achievement entirely inapt.

Readers might consider reviewing their own local school board’s “strategic plans” to see if they also contain unconstitutional race-based percentage goals.  (Hopefully, such reliance on race-based demographic statistics are not commonplace elsewhere.  As the majority opinion in the FAIR case states, “Three out of every five American universities do not consider race in their admissions decisions. And several States -- including some of the most populous (California, Florida, and Michigan) -- have prohibited race-based admissions outright.” Indeed, even here in Alexandria, Virginia, the public schools hold an annual art contest inspired by the works of Martin Luther King, Jr.  Of this year’s winners, not a single entry from over a hundred students even mentioned the concept of “equity.”)  Also, as Justice Gorsuch makes clear in his concurring opinion, even the sort of racial discrimination in admissions Harvard and other colleges got away with for years under previous Supreme Court precedents (now prohibited under the FAIR v. Harvard case), were never applicable to elementary or secondary schools:

Within higher education, however, an entirely distinct set of rules emerged. Following Bakke [a now-abrogated case from 1978 that seemed to allow racial discrimination in college admissions], this Court declared [in 2003] that judges may simply “defer” to a school’s assertion that “diversity is essential” to its “educational mission.” Not all schools, though -- elementary and secondary schools apparently do not qualify for this deference. See Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 724-725 (2007) … At the same time, the Court cautioned, this practice “must have a logical end point.” And in the meantime, “outright racial balancing” and “quota system[s]” remain “patently unconstitutional.”

In any case, the majority opinion, in describing the admissions processes used by the colleges named in the case, further states:

UNC’s [University of North Carolina’s] admissions program operates similarly [to Harvard’s]. The University frames the challenge it faces as “the admission and enrollment of underrepresented minorities,” a metric that turns solely on whether a group’s “percentage enrollment within the undergraduate student body is lower than their percentage within the general population in North Carolina.” The problem with these approaches is well established. “[O]utright racial balancing” is “patently unconstitutional.” Fisher I, 570 U. S., at 311 (internal quotation marks omitted). That is so, we have repeatedly explained, because “[a]t the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.” Miller, 515 U. S., at 911 (internal quotation marks omitted) … Justice Powell, who provided the fifth vote and controlling opinion in Bakke [Regents of the University of California v. Bakke, decided in 1978], firmly rejected the notion that societal discrimination constituted a compelling interest. Such an interest presents “an amorphous concept of injury that may be ageless in its reach into the past,” he explained. It cannot “justify a [racial] classification that imposes disadvantages upon persons … who bear no responsibility for whatever harm the beneficiaries of the [race-based] admissions program are thought to have suffered.”

In reviewing the particular race-influenced admissions policies at issue in the case before it, the Supreme Court’s majority opinion states:

Because “[r]acial discrimination [is] invidious in all contexts,” Edmonson v. Leesville Concrete Co., 500 U. S. 614, 619 (1991), we have required that universities operate their race-based admissions programs in a manner that is “sufficiently measurable to permit judicial [review]” under the rubric of strict scrutiny, Fisher v. University of Tex. at Austin, 579 U. S. 365, 381 (2016) (Fisher II).

What that means is that, going forward, schools and businesses won’t be able to hide race-based decisions under the guise of meeting vague aspirational language like “making our schools or businesses more diverse,” but will rather have to explain precisely what they mean by “diverse” such that the “diversity” is not based on skin color.  The majority opinion notes that

For that reason, one dissent [the dissenting opinion of Justice Jackson] candidly advocates abandoning the demands of strict scrutiny [arguing the Court must “get out of the way,” “leav[e] well enough alone,” and defer to universities and “experts” in determining who should be discriminated against]. An opinion professing fidelity to history (to say nothing of the law) should surely see the folly in that approach.

As the majority makes clear:

First, our cases have stressed that an individual’s race may never be used against him in the admissions process. Here, however … the District Court observed that Harvard’s “policy of considering applicants’ race … overall results in fewer Asian American and white students being admitted.” … [Citing a previously-decided case, the Court states] “One of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities.” … For what one dissent [the dissenting opinion of Justice Sotomayor] denigrates as “rhetorical flourishes about colorblindness,” are in fact the proud pronouncements of cases like Loving and Yick Wo, like Shelley and Bolling -- they are defining statements of law.

And as it turns out, as was reported a year after the Supreme Court’s decision in the FAIR case. MIT released demographic data on its incoming Class of 2028, the first students to be admitted after the Supreme Court’s affirmative action ruling last year. Compared to the Class of 2027, the number of Asian American students increased from 40 percent to 47 percent, while the share of Black/African American students decreased from 15 percent to 5 percent. The number of white students stayed roughly the same (from 38 percent to 37 percent). However, while some universities appear to be following the Supreme Court’s ruling, others, not so much.  As Jason Riley of the Wall Street Journal reports, some reluctance to abandon race-based policies mirrors the recalcitrance that followed in many Southern states following the Supreme Court 1954 decision in Brown v. Board of Education:

In Students for Fair Admissions v. Harvard (2023), the Supreme Court held that race-conscious admissions policies violated the Constitution and the Civil Rights Act of 1964. Given that Asian applicants tend to have higher test scores than other groups, the expectation was that their enrollment at top schools would increase once racial double standards were no longer permitted. That’s what happened at the University of California’s Los Angeles and Berkeley campuses after voters approved a ballot initiative prohibiting race-conscious admissions in 1996. And it’s what happened this year at Harvard, Columbia and the Massachusetts Institute of Technology. But at other elite institutions, Asian enrollment somehow declined. Mr. [John] Yoo, a Justice Department official in the George W. Bush administration and now a law professor at Berkeley, said … “The history of resistance to Brown v. Board of Education suggests that universities will respond to a loss at the Supreme Court not by abandoning their goal of meeting some ideal racial balance, but by pursuing the same end through less obvious means.” In its landmark 1954 Brown decision, the Supreme Court said that racially segregated schools were unconstitutional. Southern states refused to acknowledge the legitimacy of the ruling, and the backlash was fierce. In some cities officials opted to close public playgrounds, swimming pools, parks and schools rather than desegregate them. Other places enacted one-grade-a-year desegregation plans to slow-walk the process. It largely worked. Judge J. Harvie Wilkinson reported in his study of the period that Charlotte, N.C., enrolled three black students in white schools in 1957, four in 1958, and only one in 1959. The high court was aware of these stalling tactics but for the most part opted not to intervene. “From 1955 to 1968, the Supreme Court remained largely inactive in school desegregation” and “ducked a leading role by refusing even to review most rulings of the lower federal courts,” Judge Wilkinson wrote. The NAACP’s Thurgood Marshall and other civil-rights activists filed hundreds of lawsuits post-Brown to fight segregation on a school-by-school and district-by-district basis in more than a dozen Southern states.

The concurring opinion of Justice Thomas is also helpful in that he reviews the early history of the Supreme Court’s interpretation of the Fourteenth Amendment (and its Equal Protection Clause).  As Justice Thomas writes:

“The earliest Supreme Court opinions to interpret the Fourteenth Amendment did so in colorblind terms … In the Slaughter-House Cases, 16 Wall. 36 (1873) … the Court quickly acknowledged that the language of the Amendments did not suggest “that no one else but the negro can share in this protection.” Rather, “[i]f Mexican peonage or the Chinese coolie labor system shall develop slavery of the Mexican or Chinese race within our territory, [the Thirteenth Amendment] may safely be trusted to make it void.” And, similarly, “if other rights are assailed by the States which properly and necessarily fall within the protection of these articles, that protection will apply, though the party interested may not be of African descent.” … [In] Strauder v. West Virginia, 100 U. S. 303, 307–308 (1880) [the] Court thus found that the Fourteenth Amendment banned “expres[s]” racial classifications, no matter the race affected, because these classifications are “a stimulant to … race prejudice.”

As Justice Thomas explains:

This Court’s view of the Fourteenth Amendment reached its nadir in Plessy [v. Ferguson, a case that upheld the “separate but equal doctrine in 1896] … That holding stood in sharp contrast to the Court’s earlier embrace of the Fourteenth Amendment’s equality ideal, as Justice Harlan emphasized in dissent: The Reconstruction Amendments had aimed to remove “the race line from our systems of governments.” For Justice Harlan, the Constitution was colorblind and categorically rejected laws designed to protect “a dominant race -- a superior class of citizens,” while imposing a “badge of servitude” on others … Nonetheless, and despite Justice Harlan’s efforts, the era of state-sanctioned segregation persisted for more than a half century [until it was overturned by Brown v. Board of Education].

Justice Thomas laments that “Despite the extensive evidence favoring the colorblind view, as detailed above, it appears increasingly in vogue to embrace an ‘antisubordination’ view of the Fourteenth Amendment: that the Amendment forbids only laws that hurt, but not help, blacks. Such a theory lacks any basis in the original meaning of the Fourteenth Amendment.”

Justice Thomas goes on to correct some of the other statements made in the opinions of the dissenting Justices.  Regarding the dissenting opinion of Justice Sotomayor, Justice Thomas writes:

As anyone who has labored over an algebra textbook has undoubtedly discovered, academic advancement results from hard work and practice, not mere declaration [of race]. Simply treating students as though their grades put them at the top of their high school classes does nothing to enhance the performance level of those students or otherwise prepare them for competitive college environments. In fact, studies suggest that large racial preferences for black and Hispanic applicants have led to a disproportionately large share of those students receiving mediocre or poor grades once they arrive in competitive collegiate environments … Take science, technology, engineering, and mathematics (STEM) fields, for example. Those students who receive a large admissions preference are more likely to drop out of STEM fields than similarly situated students who did not receive such a preference … Justice Sotomayor rejects this mismatch theory as “debunked long ago,” [but] in 2016, the Journal of Economic Literature published a review of mismatch literature -- coauthored by a critic and a defender of affirmative action -- which concluded that the evidence for mismatch was “fairly convincing.” P. Arcidiacono & M. Lovenheim, Affirmative Action and the Quality-Fit Tradeoff, 54 J. Econ. Lit. 3, 20 … The solution to our Nation’s racial problems thus cannot come from policies grounded in affirmative action or some other conception of equity. Racialism simply cannot be undone by different or more racialism. Instead, the solution announced in the second founding is incorporated in our Constitution: that we are all equal, and should be treated equally before the law without regard to our 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.

And regarding the dissenting opinion of Justice Jackson, Justice Thomas points out the vicious cycle of discrimination perpetuated by proponents of race-based preferences:

Justice Jackson … builds from her faulty premise to call for action, arguing that courts should defer to “experts” and allow institutions to discriminate on the basis of race. Make no mistake: Her dissent is not a vanguard of the innocent and helpless. It is instead a call to empower privileged elites, who will “tell us [what] is required to level the playing field” among castes and classifications that they alone can divine … Unsurprisingly, this tried-and-failed system defies both law and reason. Start with the obvious: If social reorganization in the name of equality may be justified by the mere fact of statistical disparities among racial groups, then that reorganization must continue until these disparities are fully eliminated, regardless of the reasons for the disparties and the cost of their elimination. If blacks fail a test at higher rates than their white counterparts (regardless of whether the reason for the disparity has anything at all to do with race), the only solution will be race-focused measures. If those measures were to result in blacks failing at yet higher rates, the only solution would be to double down … Even today, affirmative action programs that offer an admissions boost to black and Hispanic students discriminate against those who identify themselves as members of other races that do not receive such preferential treatment. Must others in the future make sacrifices to relevel the playing field for this new phase of racial subordination? And then, out of whose lives should the debt owed to those further victims be repaid? This vision of meeting social racism with government-imposed racism is thus self-defeating, resulting in a never-ending cycle of victimization. There is no reason to continue down that path. In the wake of the Civil War, the Framers of the Fourteenth Amendment charted a way out: a colorblind Constitution that requires the government to, at long last, put aside its citizens’ skin color and focus on their individual achievements.

Polls show wide approval of the Supreme Court’s decision to hold affirmative action preferences unconstitutional.  As the Free Press reports on a January, 2024 Gallup poll:

Affirmative action is unpopular: When the Supreme Court ruled against the use of race in college admissions last summer, we were told the heavy-handed justices were once again wading into a divisive, hot-button issue. New polling from Gallup suggests otherwise. Their latest survey finds that two-thirds of Americans think the ruling was “mostly a good thing.” Gallup presented its findings as evidence that “views on admissions differ by race.” But take a look for yourself. The gap between different groups really isn’t that big:

Another way of describing the same results: majorities of all American racial groups agree that an end to affirmative action has been mostly a good thing. But why report on consensus when you can sow division?

In the next and final essay in this series, we’ll examine how the FAIR v. Harvard decision applies to all manner of public and private entities, not just colleges.