SCOTUS Strikes Down Affirmative Action, But Leaves Loophole

The Supreme Court handed down their decision to seeming to strike down affirmative action in the case Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions v University of North Carolina, with the majority opinion arguing that the practice violates the equal protection clause of the 14th Amendment.

Supreme Court

The Court found that affirmative action, though its disparate treatment of members of prospective students based on rates, violates the 14th Amendment’s equal protection clause, which explicitly mandates all people of the United States be treated equally under the law.

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Chief Justice Roberts, who wrote the majority opinion, took time to review the history of racial discrimination precedent, citing the long tradition of the Court, after falling away from the ideal of legal colorblindness with Plessy v Ferguson and others, of affirming the colorblind attitude of the 14th Amendment by declaring school segregation, interracial marriage bans, and more as unconstitutional under it.

Robert went on to note that “Any exception to the Constitution’s demand for equal protection must survive a daunting two-step examination known in our cases as “strict scrutiny.” Strict scrutiny is a two-part test that requires a racially unequal law to serve “compelling governmental interests.” and to be “narrowly tailored”—meaning “necessary”—to achieve that interest.” Examples include the remediation of historical injustices (in some cases) and maintaining prison safety through racial segregation.

The majority found that affirmative action did not meet this standard, as any compelling government interest, such as adjusting admissions processes not to leave out applicants from poor socio-economic backgrounds and opportunities, could be achieved without examining race. While the universities cited the educational benefits of diversity itself, Roberts wrote that such theoretical benefits are not “sufficiently coherent” to withstand strict scrutiny, noting that it’s unable to measure the results of the policy meaningfully, unlike racial segregation in prisons, where violence is readily measurable.

Predictably, many conservatives cheered the decision, including Florida Governor Ron DeSantis.

“College admissions should be based on merit and applicants should not be judged on their race or ethnicity. The Supreme Court has correctly upheld the Constitution and ended discrimination by colleges and universities.”

President Trump also celebrated on Truth Social, saying, “This is a great day for America” and “We’re going back to all merit-based- and that’s the way it should be!”

However, conservatives may be getting ahead of themselves. While the Court found affirmative action based on race unconstitutional, it did carve out room for judgment regarding experiences and effects of race on their life in character, primarily in college application essays. Presumably, mention of one’s race specifically will be allowed in these essays under this decision.

Given how much of a black box college admissions already are under most circumstances and how much tighter they’re likely to become after this ruling, it is not clear that the decision will have any actual effect. Instead, universities will likely use the principled loophole to carry on the same behavior while simply claiming different reasoning.

While conservatives have reason to celebrate the decision as evidence of the Court’s progress toward reliable originalism, it’s too early to celebrate any political results.

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