Students for Fair Admissions v. Harvard: The End of Racism In Academia?
“I refuse to accept the view that mankind is so tragically bound to the starless midnight of racism and war that the bright daybreak of peace and brotherhood can never become a reality” (MLK Jr.)
The Supreme Court released three decisions late last week:
- Students for Fair Admissions, v. Harvard, overturning affirmative action in college admissions;
- Biden v. Nebraska, overturning President Biden’s student loan forgiveness program; and
- 303 Creative LLC v. Elenis, overturning a Colorado law that would allow the state to force people to engage in speech they did not agree with (compelled speech).
Though people believe these are earthshaking decisions, in reality they do nothing more than (1) hold that the federal government, state governments and public institutions must comply with the Constitution and federal law; and (2) that private institutions who accept federal funds must comply with Title VI. That’s it. Nothing more. And yet, many are going batshit crazy.
At first, I was going to address all three cases in one article, and that would be simple(ish) if the article was limited to the decisions. However, there’s so much to unpack I decided to address each in separate articles.
First up – Students for Fair Admissions, v. Harvard (Students for Fair Admissions). In this case, Harvard and the University of North Carolina were found to be using race-based discriminatory policies in determining who they would admit in violation of the 14th Amendment and Title VI of the Civil Rights Act of 1964.
In short, Harvard and UNC were giving Black applicants ‘bonus’ points because of their race. Hispanic applicants were also given ‘bonus’ points, but to a lesser degree than Black applicants.[i] As a result, highly qualified Asian students, as well as every other racial group, were being passed over for admittance. As the court found these policies were unconstitutional under the 14th Amendment and violated Title VI.
So, you ask how, after the ratification of the 14th Amendment and the Civil Rights movement did we get to the point where racial discrimination was allowed? Good question. The short answer is the government, with the Supreme Court’s blessing decided to ignore the Constitution, but a little history is required to understand how that happened.
The 14th Amendment was ratified on July 9, 1868, and covers a lot of ground, but in this case we’re only interested in its “equal protection clause,” which simply states that “No state shall…deny to any person within its jurisdiction the equal protection of the laws.”
After the 14th Amendment was ratified, we started out strong. In Strauder v. West Virginia, 100 U.S. 303 (1880), a case involving a Black man accused of murder, the Supreme Court recognized that the 14th Amendment made all equal under the Constitution stating the “law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States…” I imagine this was an unpopular decision at the time, at least in a large part of the country, but the Court disregarded popular opinion and did what it is supposed to – ruled on what the Constitution said and not on what some wished it said.
Six years later in Yick Wo v. Hopkins, 118 U.S. 356 (1886), a case involving a Chinese man operating a laundry, the Court again read the 14th Amendment for what it said and held that the equal protection clause’s provisions are “universal in their application to all persons… without regard to any differences of race, of color, or of nationality.”
Alas, this adherence to the 14th Amendment was short lived and soon the Court abdicated their duty and allowed the state and federal governments to apply the law differently to people of different races.
The most infamous case is of course Plessy v. Ferguson, 163 U.S. 537 (1896) upholding the abhorrent “separate but equal” doctrine. But this was not the only case that trampled on the 14th Amendment and allowed discrimination. Just a few of many examples, Missouri ex erl, Gaines v. Canada, 305 U.S. 337 (1938) affirmed the separate but equal doctrine. Hirabayashi v. United States 320 U.S. 81 (1943) upheld the government-imposed curfew on Japanese-Americans during WW II because they were of Japanese heritage and nothing more. And then there was Korematsu v. United States, 323 U.S. 214 (1944) upholding as constitutional the forced internment of approximately 122,000 Japanese-Americans in prison camps during WW II for the non-crime of being Japanese-Americans.[ii]
Finally in 1954 we again found the 14th Amendment in Brown v. Board of Education, 347 U.S. 483 and returned to ‘all are equal before the law regardless of race.’ Alas, that too was a short-lived mirage. Instead of demanding compliance with the 5th and 14th Amendments, the Supreme Court, federal and state governments once again subverted them in a misguided attempt to promote a noble cause – righting the wrongs of the past. In order to achieve that goal, they implemented “Affirmative Action” programs that gave special consideration to members of certain races, first to Blacks, and later and to a lesser extent to Hispanics. By definition these affirmative action programs, as are all race-based programs, discriminate against members of the excluded races.
The next question is – how were affirmative action programs that violated the 5th and 14th Amendments, and after 1964, Title VI of the Civil Rights Act of 1964 allowed to continue? Simple, by the desire of government and academia coupled with the Supreme Court’s use of the “strict scrutiny” balancing test.
When a legal action is brought against the federal or state governments based on the deprivation of a constitutionally protected right the courts use one of three “balancing” tests. Since the Due Process clause of the 5th and the equal protection clause of the 14th Amendments are recognized as “fundamental” rights, the courts uses the strict scrutiny test. This test requires the government (federal or state) to have a compelling (necessary) reason to restrict the right and the law is narrowly tailored to limit the government’s infringement on the right. In affirmative action cases the Court held that the government had a compelling interest in righting the wrongs of past discrimination and later to achieve a diverse class of students. The Court also held that the laws were narrowly written in order to achieve that compelling interest.
Well, that gets them around the 5th and 14th Amendments, but how about Title VI? Well, the court has held that a violation of Title VI is the same as a violation of the 14th Amendment. So, the Court interprets Title VI violations the same as they do 14th Amendment violations, which means they use the “strict scrutiny” test. The Court does this even though Title VI is a statute and not a matter of constitutional interpretation and therefore, should be interpretated based on its plain language without the use of a balancing test.[iii] As Justice Gorsuch points out in his concurring opinion, if the Court would have done this in 1964, we would not have suffered through almost six decades of racial discrimination.
That brings us up to Students for Fair Admissions, which did nothing more than apply the 14th Amendment and Title VI as they are written. Well that and cause many to argue the Court was wrong based on what they wished the text of the Constitution said and not on what it actually says. Oh, and generated an amazing amount of racist comments.
All Students for Fair Admissions does is recognize that it is unconstitutional to discriminate based on race. This decision should not be a surprise. Though the Court allowed race-based admissions, they made it clear that they were allowed only within narrow limits and even then, they had to have an end date. In Grutter v. Bollinger, 539 U.S. 306 (2003) the Court strongly implied that end limit could not exceed twenty-five years. Twenty years later these programs had no end in sight, a fact the Court noted.
What I find more surprising than the holding is the knee-jerk, fact free, and often racist reaction from many.
Justice Jackson’s dissent is nothing more than a policy argument based on race, not an argument about what the Constitution and Title VI allows or mandates. When stripped of its rhetoric, her argument is the Constitution and Title VI can be ignored in order to obtain a result she desires. Her position might make for a good debate in a university’s faculty lounge. However, it is irrelevant to interpreting the Constitution. In his concurring opinion Justice Thomas eviscerated Justice Jackson’s dissent and in so doing observed:
The great failure of this country was slavery and its progeny. And, the tragic failure of this Court was its misinterpretation of the Reconstruction Amendments, as Justice Harlan predicted in Plessy. We should not repeat this mistake merely because we think, as our predecessors thought, that the present arrangements are superior to the Constitution. (emphasis mine).
In other words, the Court should apply the Constitution in accordance with its text and not judicially amend it at the urging of elites. If the Constitution is to be amended it must be done through Article V, not the Supreme Court. If the Court would have held to this view, as they started to in Strauder v. West Virginia in 1880, then our country would have avoided the shame of the Jim Crow laws, including segregation.
As poor as Justice Jackson’s dissent is, the reaction from many ordinary citizens is not only unbelievably stupid but blatantly racist. Erica Marsh, a self-proclaimed progressive Democrat activist, tweeted:
Today’s Supreme Court decision is a direct attack on Black people. No Black person will be able to succeed in a merit-based system which is exactly why affirmative-action based programs were needed. Today’s decision is a TRAVESTY!!! (Erica Marsh (@ericareport)June 29, 2023). (emphasis mine).
First, it was not a direct, or any other type of “attack on Black people.” Students for Fair Admissions merely holds that race-based discrimination does not pass constitutional muster and violates Title VI of the Civil Rights Act. Second, by stating that Black people cannot succeed with out benefiting from affirmative action programs is the most racist things I’ve read. In fact, it is a belief I thought was confined to that small group of mental midgets that belong to the Aryan Race and other loathsome groups. She should slink off in shame.
Then there’s Soledad O’Brien’s response to Yiatin Chu, an Asian-American who sent a tweet in support of the Students for Fair Admissions decision:
Congrats on screwing over other people of color, ma’am! (Particularly those whose efforts in civil rights paved the way for your family to come to America!) (Twitchy)
How did Ms. Chu, a mother, screw over anyone? All she did was support the end to race-based admission policies that discriminated against her children and other Asian-Americans, not to mention Native Americans, Middle Easterners, Caucasians, and to a lesser extent Hispanics.
Not to be outdone, Jemele Hill accused Ms. Chu of gladly carrying “water for white supremacy” – I’m old enough to remember when thinking people were against racial discrimination. For the good of the country, I hope I’m not a dinosaur.
As I’ve written before, our Constitution was written by some of the greatest minds in American history who borrowed from some of the greatest minds in the history of the western world. Over the next 200 years it was refined by other Americans who were intellectual giants until we have a Constitution that protects our civil liberties while providing a stable government. Now all we have to do is faithfully apply the Constitution to 21st century America, a task that honestly is not hard. Though technology changes, the civil liberties protected by the Constitution do not. Free speech in the age of the printing press and free speech in the age of the internet are the same, just the means of engaging in free speech has changed. It is the same for every other civil liberty protected by the Constitution…technology has changed, but our liberties remain the same. We just have to ensure the “elites” follow the Constitution.
“We can’t pursue good by adopting evil. We can’t fight racism by engaging in racism.” (Aaron Briley)
[i] Chief Justice Roberts provides a full description of the admission policies of Harvard and UNC in the “Opinion of the Court.”
[ii] Though Hirabayashi and Korematsu were brought against the federal government and not a state government, and therefore, the 14th Amendment does not apply, the 5th Amendment does. The 5th Amendment‘s Due Process Clause requires the federal government to practice equal protection, the same as the Fourteenth Amendment’s Equal Protection Clause and are analyzed the same.
[iii] See: Students for Fair Admissions, v. Harvard, footnote 2.