Affirmative Action, Rule of Law, and the Role of Law

By Ian Zhou '26

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On June 29, 2023, in Students for Fair Admissions, Inc. (SFFA) v. President and Fellows of Harvard College, the Supreme Court delivered a landmark 6-2 decision declaring race-based affirmative action programs in college admissions unconstitutional. Justice Ketanji Brown Jackson recused herself as a member of Harvard’s Board of Overseers at the time. (1) However, Justice Jackson did participate in the decision for Students for Fair Admissions, Inc. v. University of North Carolina, the companion case to the above, which shadowed a similar 6-3 decision against affirmative action (henceforth abbreviated as “AA”).

Both cases sought to re-evaluate the constitutionality of affirmative action. This was pursued through different avenues; in Harvard, SFFA attacked AA using Title VI of the Civil Rights Act of 1964, which prohibits racial discrimination in programs and institutions receiving federal funding. (2) However, in UNC, SFFA wielded the Equal Protection Clause of the 14th Amendment, sharing an argumentative predicate with Harvard. (3) Ultimately, the Supreme Court applied the Equal Protection Clause to the rulings of both cases, relegating affirmative action to the annals of legal history. (4)

Previously, in the 1978 landmark case Regents of the University of California v. Bakke, the Supreme Court ruled that considering race as a determining factor in college admissions was constitutional; however, explicit racial quotas used by the UC Davis School of Medicine were deemed discriminatory and thus unconstitutional. (5) In 2003, Grutter v. Bollinger upheld the constitutionality of AA, although Justice Sandra Day O’Connor wrote that “25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” (6) Interestingly, this idea of a 25-year limit to AA’s constitutionality was reiterated in the opinion of the court in Harvard, with Chief Justice John Roberts quipping that “Twenty years later, no end is in sight.” (7) These rulings established a significant precedent favoring the consideration of race-based factors in college admissions, upheld until June of 2023.

The recent surge in attention to the SFFA cases has given rise to factions of debate. The right wing tends to consider affirmative action a lopsided system favoring African Americans and Hispanics over Asian Americans and Caucasians. Indeed, Justice Roberts argues in Harvard that college admissions is a “zero-sum game” with limited seats in entering classes; in effect, any policy favoring one group over another “necessarily advantages the former group at the expense of the latter.” (8) On that same note, lobbyist and SFFA president Edward Blum referenced research by Thomas J. Espenshade and Alexandria Walton Radford at Princeton during these cases. The work in question, No Longer Separate, Not Yet Equal, states that, ceteris paribus, Asian Americans must score an average of 140 SAT points higher than Caucasian applicants and 450 points higher than African American applicants to have similar chances of admission to selective private colleges. (9) Although these theoretical numbers are statistically extrapolated and were not directly reported by universities, this discrepancy is rarely ever addressed. Espenshade's and Radford's figures continue to permeate the arguments of right-wing opponents of AA.

The left end of the political spectrum views AA as the most efficient system for correcting existing societal inequalities by expanding diversity in higher education. In a 1990s panel of three female judges, Justice Sonia Sotomayor remarked how she was the “perfect affirmative action baby,” citing her test scores as otherwise “not comparable to [her] colleagues at Princeton and Yale.” (10) Sotomayor declared that “it would have been highly questionable if [she] would have been accepted” to these universities had they considered “traditional numbers.” (11) In her dissenting opinion in Harvard, Sotomayor was an outspoken proponent of affirmative action and a vocal critic of the majority opinion, which she condemned as ignorant of the predominant injustices in society; referencing amici curiae on how “a diverse workforce improves business performance, better serves a diverse consumer marketplace, and strengthens the overall American economy,” Sotomayor contends that Harvard “further entrenches racial inequality by making these pipelines to leadership roles less diverse.” (12)

Here, it is imperative to recognize the existence of inherent societal inequalities engraved in American history, and several examples yield themselves for analysis. For one, the original interpretation of the Declaration of Independence’s phrase, “all men are created equal,” applied only to white, land-owning men. It was only by the 1828 presidential election and the rise of populism that the idea of universal white male suffrage took hold, and only by the 1860s did most states eliminate property requirements for suffrage. At the time, any woman or person of another racial/ethnic group was entirely excluded from the suffrage question. Furthermore, even though the 246-year-old Southern tradition of slavery (the United States itself is only 247 years old as of July 4, 2023) was abolished in name by the Civil War and the 13th Amendment, many African Americans still found themselves economically chained to the brutal sharecropping system for decades to come.

While experts offer valid points in the affirmative action debate, erroneous generalizations from politicized media of both wings tend to exacerbate polarization and misunderstanding. It seems that even the Supreme Court was not completely exempt from the bickering.

Justice Clarence Thomas denounced Justice Jackson’s AA-favoring argument, highlighting her oratory’s excessive emphasis on the continuing effects of slavery in promoting racial gaps. In his concurring opinion, he criticized her focus on “the historical subjugation of black Americans, invoking statistical racial gaps to argue in favor of defining and categorizing individuals by their race.” (13) Interestingly, Justice Thomas further expressed solidarity with Asian Americans who, in his opinion, “can hardly be described as the beneficiaries of historical racial advantages,” citing evidence to the contrary: 19th-century Chinese American immigrants generated resentment from lowered wages, and historical anti-Asian policies were implemented in response. (14)

In further reproach, Thomas wrote, “As [Jackson] sees things, we are all inexorably trapped in a fundamentally racist society, with the original sin of slavery and the historical subjugation of black Americans still determining our lives today.” (15) Although possibly exaggerated for emphasis, Thomas’ interpretation of Jackson’s dissent belies certain truths.

It can be argued that, while the Civil War ended militarily, its political struggles instead shifted with the times. Postwar Reconstruction failed to dismantle and rebuild the root beliefs of the deep South, leading to the Jim Crow era that all but ignored the intent of the 14th Amendment. Heather Cox Richardson, an acclaimed Substack author and professor of history at Boston College, asserts that Southern influence largely migrated and thrived in the western United States after the war; a combination of the subjugation of Native Americans and extractive industries in lands acquired in the Mexican-American War served as the ideal haven for a Southern rebirth. (16)

While discrimination against African Americans has been scratched out in writing by the Civil Rights amendments, these changes were relatively recent—the functionally racist poll tax was abolished less than six decades ago. (17) Intrinsic sociocultural changes rarely unfold over mere decades, and generational setbacks propagate beyond the law in the form of poverty and lack of access to education.

In further analysis, one can see evident disparities in modern-day society through the Opportunity Atlas, a color-coded socioeconomic map of the United States created by Harvard economist Raj Chetty. (18) In this map, Chetty details the upward socioeconomic mobility—the likelihood of new generations having a higher salary than their parents—of neighborhoods across the nation, using anonymous data gathered from 20 million Americans from childhood to their mid-30s. The stark income and educational differences across metropolitan areas such as New York City and Miami belie systemic inequalities. Economic segregation replaced legal segregation as the key driver of urban order, and cities naturally self-sorted into enclaves with distinct income levels and predominant ethnicities.

So, why do these existing inequalities pertain to affirmative action? At its core, AA is not a battle of fairness and equality; rather, it is an ideological struggle for how we define those words. Under its principles, the college admissions system is, by definition, unequal in individual treatment. But, does that really make it unequal in the social sense of the word? In both Harvard and UNC, the Equal Protection Clause of the 14th Amendment was the cynosure of the Supreme Court. But, does “Equal Protection” mean that laws should be applied equally or to foster equality?

Moreover, when equality and equity are mutually exclusive in practice, should institutes of higher education sacrifice equal treatment in the pursuit of equal opportunity? In Grutter, the Court “endorse[d] Justice [Lewis] Powell’s view that student body diversity is a compelling state interest that can justify the use of race in university admissions.” (19) Does a “compelling state interest” warrant the sacrifice of nominal equality? More importantly, does the Constitution, parts of which the framers intentionally left ambiguous, allow this for the sake of the “greater good” of society? Harvard and UNC have shed light on the current court’s opinion, and the rift is growing wider than ever.

In America, opposing ideologies of equality and subordination remain woven into the nation's fabric as products of a paradoxical history. Affirmative action is at the crux of a far larger debate on bridging the disparity between what society is and what it ought to be. It strikes at the soul of the United States: the dream and persisting struggle to provide equal opportunity, from disquietingly unequal roots.

Endnotes

1. Students for Fair Admissions v. President and Fellows of Harvard College 600 U.S. 8 (2023).

2. "Students for Fair Admissions v. President and Fellows of Harvard College." Oyez. Accessed January 18, 2024. https://www.oyez.org/cases/2022/20-1199.

3. "Students for Fair Admissions v. University of North Carolina." Oyez. Accessed January 18, 2024. https://www.oyez.org/cases/2022/21-707.

4. SFFA v. Harvard 600 U.S. 39 (2023).

5. Regents of the University of California v. Bakke. (n.d.). Oyez. Retrieved January 21, 2024, from https://www.oyez.org/cases/1979/76-811.

6. Grutter v. Bollinger 539 U. S. 306 (2003).

7. SFFA v. Harvard 600 U.S. 21 (2023).

8. Ibid., 27.

9. Thomas J. Espenshade and Alexandria Walton Radford, “No Longer Separate, Not Yet Equal: Race and Class in Elite College Admission and Campus Life”, Princeton University Press, 2009.

10. Bill Mears, “Sotomayor says she was 'perfect affirmative action baby’”, CNN, 2009

11. Ibid.

12. SFFA v. Harvard 600 U.S. 66 (2023).

13. Ibid., 49.

14. Ibid., 43.

15. Ibid., 49.

16. Heather Cox Richardson, “How the South Won the Civil War”, Oxford University Press, 2020

17. U.S. Const. amend. XXIV § 1.

18. Raj Chetty et al., "The Opportunity Atlas", https://www.opportunityatlas.org/

19. Grutter v. Bollinger 539 U. S. 306 (2003).