U.S. Supreme Court rules affirmative action unconstitutional

The decision ends several decades of what many in America consider to be race-based discrimination in the college admissions process. Photo credit: AP/Jose Luis Magana


Last week’s Supreme Court ruling in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, ended affirmative action as public policy in the United States. The facts overwhelmingly support the decision, and the written opinions further bolster the outcome. Reading mainstream news sources or listening to reports, podcasts, or news shows from similar broadcasters would convince you otherwise. Let’s look at the evidence. 

The ruling strikes down affirmative action in college admissions, designed to redress racial discrimination. The Court based its ruling on the Equal Protection Clause of the 14th Amendment. This constitutional clause states, Section 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The statistics cited in the Court’s opinion show the disparity between the group’s gaining admission and those being kept out at the two universities named in the lawsuit – Harvard and the University of North Carolina (UNC). Ben Shapiro explained in his analysis of the decision last Friday that the scores reveal racism. Take the top 10 per cent performing students on the SAT (Scholastic Aptitude Test American, the exam students take to gain college admission) in each racial group and watch what happens to the numbers.


ASIAN 12.7%
WHITE 15.3%

Now look at those students who performed better than 40 per cent of the population and notice the conundrum created.



Comparing the tables reveals that an African-American applicant who performed in the fourth decile of students had a better chance of admission to these schools than an Asian student who performed in the top 10 per cent. That, in most instances, rises to the level of racism. Trying to identify where this kind of racial practice would be considered fair in the light of the 14th Amendment stretches the bonds of constitutional credulity. Asians suffer most under this regime with underperforming black students gaining admission based on race and Asians being blocked based on race. 

The absurdity of this can be applied to other areas of life. As Shapiro notes, use Major League Baseball (MLB) as an example. For about half a century baseball executives prevented African-American ball players from participating in the Majors. As a result, the Negro Leagues began in about 1920, and some outstanding players were developed. By around 1946, Branch Rickey of the Dodgers identified Jackie Robinson as the man to break the colour barrier in MLB. Before long the Negro Leagues were out of business because MLB was signing the best players ending the competitive nature of the league. 

What if baseball had decided on quotas to best address the problem of past discrimination? If MLB had done this, would that have improved the performance of black pitchers and hitters, or would there have been more mediocre ball players? If the standards are lowered this does not increase quality. What about ethnic tensions? Would that improve them or heighten them? These policies are well-intentioned but misguided. Racist practices do not help the cause in the end. Even in affirmative action, the idea that in 2023 black students cannot succeed without government intervention reveals two problems: a) black Americans are less capable, which is racist and untrue; or, b) America is so systematically racist that black Americans can never get ahead. There is no end to the policy and it stymies American society from ever moving beyond its racist past. 

The Justices opinions are argued historically. In summary, the four most important arguments came from Roberts, Thomas, Sotomayor, and Ketanji Brown Jackson. Roberts pointed out some of the cases from the past, including Grutter v Bollinger (2003) in which retired Justice Sandra Day O’Connor suggested that affirmative action would sunset about 25 years in the future. Writing for the majority, the Chief Justice said too many colleges had “concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin.”

“Our Constitutional history does not tolerate that choice.” 

Thomas’ concurring opinion strongly opposed affirmative action, calling the admission policy “rudderless, race-based preferences designed to ensure a particular racial mix in their entering classes.” Thomas, born in 1948 and old enough to have witnessed Jim Crow Laws in parts of America further wrote, “While I am painfully aware of the social and economic ravages which have befallen my race and all who suffer discrimination,” he added, “I hold out enduring hope that this country will live up to its principles so clearly enunciated in the Declaration of Independence and the Constitution of the United States: that all men are created equal, are equal citizens, and must be treated equally before the law.” 

In succinct terms, Thomas said later that “two discriminatory wrongs does not make a right.” As Thomas noted in his opinion, throughout the passing of constitutional amendments in the 1860s and Civil Rights laws in the 1960s, the arguments were about equal citizenship and the racial equality that flowed from it. 

As for the liberal judges, Sotomayor relied too heavily on emotion and feeling, not enough on the facts. Reading her dissent from the bench, a rare tactic, often a sign of a justice’s desire to hear their opinion more forcefully, included the following, “Today, this Court stands in the way and rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits. In so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.” The justice went on to provide a tidy summary of American racial history and some of the justifications for redressing these practices. 

What she never addressed speaks to a modern America, multi-cultural in makeup and a century and a half removed from slavery. She almost seemed to indicate that even reading sufficed as a reason to maintain affirmative action laws, as if restrictive practices existed either discouraging or preventing black people from learning their ABCs. She also relied on legislation after the passage of the 14th Amendment that she claimed proved steps could be taken to improve and target education for African-Americans. The funding for separate black colleges, however, only confuses the issue of segregation with education, reinforcing racist practices of the past. As confused as Sotomayor seemed, Brown Jackson’s arguments lacked credibility. 

The most recent member of the court, Brown Jackson also embarked on a long history lesson in her dissent, tracing things back hundreds of years ago to the slave trade and then documenting all the ups and downs of the black experience, until the 20th century when FDR began the long liberal project of correcting racial wrongs (or was it building a voting coalition to forever hold power?). The problem with Brown Jackson’s descent through American archives surfaces when she tries to argue for more redressing of African-American discrimination at the hands of other minority groups. The last six decades of redress and the promise of a 25-year boundary came home to roost. Brown Jackson could not make a strong enough argument to justify the continued use of discrimination to correct past discrimination. 

Unfortunately for our liberal friends, not only are the arguments for remedying these problems growing weaker, the judges making them appear to be affirmative action appointments. Outside of Elena Kagan, the liberal side is outmanned. The six conservative justices write such sterling opinions that the liberal dissents seem embryonic, in some cases, stillborn. Brown Jackson has the potential to improve. Sotomayor remains a mystifying pick, other than she met the criteria. For some time to come, this Court will continue to confound the press and other leftist institutions. 

The ruling in this case merely signals that the 6-3 conservative edge will likely hold going forward. Bad news for our progressive friends. The fact that the intellectual heft resides on the right only makes it worse for those charged with elucidating the liberal cause. 

To read the full court opinion on Students for Fair Admissions, Inc. v. President and Fellows of Harvard College click here.

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