Conservatives are cheering and progressives are crying about the recent Supreme Court decision in the case of Students for Fair Admissions v. President and Fellows of Harvard College, which was consolidated with Students for Fair Admissions v. University of North Carolina et al.
The cases began in 2014 when Students for Fair Admission (SFFA)—a nonprofit organization whose stated purpose is “to defend human and civil rights secured by law, including the right of individuals to equal protection under the law”—sued Harvard University and the University of North Carolina on behalf of Asian-American applicants because, it was alleged, the schools’ highly selective race-based admissions policies violated Title VI of the Civil Rights Act of 1964 and Equal Protection Clause of the Fourteenth Amendment.
Both schools consider an applicant’s race in admissions to “diversify” their student bodies, particularly by giving preference to black and Latino applicants who may have been “disadvantaged by racism.”
This practice has been considered constitutional since the first Supreme Court affirmative action case, Regents of the University of California v. Bakke (1978). In that case, Alan Bakke, a white man, was twice denied admission to the medical school at the University of California at Davis even though his qualifications exceeded those of any of the minority students admitted in the two years since his applications were rejected. The Supreme Court ruled, by a vote of 5-4, that the use of race as “a factor” in admissions decisions in higher education was constitutional—even though Title VI of the Civil Rights Act clearly states: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
Nevertheless, the Supreme Court again affirmed this practice in Grutter v. Bollinger (2003). In that case, a preferential admissions policy at the University of Michigan Law School that was based on race and admitted less-qualified minorities over more-qualified whites was ruled constitutional by a vote of 5-4 because the school’s race-conscious admissions program did not “unduly harm nonminority applicants.”
But regarding the two recent cases, the Supreme Court took a different view. Chief Justice Roberts wrote in his majority opinion:
The Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. Both 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. We have never permitted admissions programs to work in that way, and we will not do so today.
In his concurring opinion, Justice Gorsuch emphasized that Title VI of the Civil Rights Act likewise does not countenance this practice:
Title VI prohibits a recipient of federal funds from intentionally treating one person worse than another similarly situated person because of his race, color, or national origin. It does not matter if the recipient can point to “some other…factor” that contributed to its decision to disfavor that individual. It does not matter if the recipient discriminates in order to advance some further benign “intention” or “motivation.”
Does the Supreme Court opinion mean that American colleges—most all of them controlled by cultural leftists—will actually quit practicing affirmative action? Of course not. Many colleges have already ditched objective metrics like SAT scores on the grounds that the tests are “racist.” And now they can use proxies for affirmative action like “socioeconomic status.”
Predictably, U.S. Senator Tom Cotton (R-Ark.) praised the Supreme Court’s decision: “Affirmative action is systemic discrimination. I’m thankful the Supreme Court held this discrimination violates the constitution. Admissions should be decided on merit—not by color of skin.”
And just as predictably, President Joe Biden said that he “strongly” disagreed with the court’s decision because “our colleges are stronger when they are racially diverse.” Vice President Kamala Harris called it “a step backward for our nation” that “rolls back long-established precedent and will make it more difficult for students from underrepresented backgrounds to have access to opportunities that will help them fulfill their full potential.”
But the divide between conservatives and progressives is not very deep. They both believe that it is the job of the federal government to combat discrimination and to have a role in education, and that is the real issue here: Should the federal government be involved in either? The answer is no.
Although Harvard is a private university and UNC is a state institution, they are both heavily dependent upon the federal government for research grants and student loans, both of which are highly unconstitutional.
In a truly free society—one in which government had nothing to do with education—Harvard would be able to discriminate in admissions against any racial or ethnic group for any reason and craft whatever affirmative action policy it desired. Likewise for UNC, which, in a free society, would neither receive federal funds nor be a creature of the state of North Carolina. But even now, whatever race-based admissions policy that exists now or in the future at UNC is strictly the concern of the North Carolina legislature and the people of North Carolina.
Affirmative action in college admissions is not the real issue, because in a free society, schools—like businesses, organizations, and individuals—would be free to practice discrimination and enact affirmative action programs to benefit one or more “underrepresented” groups.
This article was originally featured at the Future of Freedom Foundation and is republished with permission.