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 … Continue reading Students for Fair Admissions v. Harvard: The End of Racism In Academia?