Musings on the Supreme Court Affirmative Action Decision

The Supreme Court’s recent ruling in Students for Fair Admissions v. Harvard outlaws consideration of race in university admissions. The decision overturns years of precedent permitting race to be a factor in a holistic admissions process. The decision inaccurately equates diversity efforts with historic racism against Blacks, and unfortunately promises to further divide the nation concerning the value of diversity.

By Philip M. Berkowitz and Johane Severin | July 19, 2023

A well-to-do executive recently lamented in conversation that his Princeton-educated daughter, a partner at a Big Four accounting firm who had received perfect scores on her SATs, had not been admitted into Yale’s graduate business school. She wasn’t accepted, he said, because of Yale’s diversity programs. His daughter’s spot, he claimed, had gone to a less qualified, minority applicant.

As she was denied entry into Yale, where, one wondered, had his daughter received her MBA? To what school had she been relegated by this injustice? His answer: Wharton. Well, good gracious.

Which leads me to the Supreme Court’s decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College [2023 WL 4239254 (2023)], which effectively overturned decades of precedent by concluding that any consideration of race as a factor in university admissions is unlawful discrimination and making the point numerous times that any consideration of race in favor of a Black applicant necessarily trammels on the rights of white applicants.

The court concluded that any consideration of race in the admissions process is per se “pernicious” and unlawful.

The court’s decision echoes the executive’s notion that his daughter had been bumped by a less-qualified minority. The majority opinion (and Justice Clarence Thomas’s concurrence) claims that “college admissions are zero-sum. A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.”

But this argument, repeated over and over, is a red herring and a fallacy. Fewer slots are available to well-qualified applicants not because of an overemphasis on considerations of race, but because many seats are set aside for legacy applicants, athletes, students whose families will pay full freight, and others.

Moreover, few are willing to acknowledge that many applicants now fit a standard profile in the rarified world of elite college admissions, making it harder to stand out in a pool of highly qualified candidates. Impressive scores on standardized tests and advanced placement and honors courses are no longer enough. Resumes that include trips abroad, active participation in sports, community service activities, and/or the arts have become the norm.

It is more difficult to get into certain schools not because unqualified candidates are being admitted, but because more students are getting the opportunity to even be considered for admission.

Justice Thomas states that affirmative action “stamps blacks and Hispanics with a badge of inferiority.” He claims that it “taints the accomplishments of all those who are admitted as a result of racial discrimination” [sic], “because no one can distinguish those students from the ones whose race played a role in their admission.”

However, affirmative action policies are not responsible for placing stamps of inferiority on people of color. Thomas makes no mention of individuals who are admitted on the basis of legacy, athletic ability, or the ability to pay full freight. In his view, presumably, no “badge of inferiority” is placed on them.

Thomas’s observation reflects the misguided belief that the accomplishments of the Black and Latino students who are admitted to these institutions were insufficient to merit their admission.

Thomas also asserts, “when blacks … take positions in the highest places of government, industry, or academia, it is an open question whether their skin color played a part in their advancement.” Thomas’s statement reflects an inconvenient and uncomfortable truth. But the real question here is not what role skin color may have played; it is what roles do familial relationships and access to individuals who occupy lofty positions in these fields play in anyone’s advancement.

The Students for Fair Admissions decision makes no distinction between—and indeed it equates—the racism that justified slavery, the racism of Jim Crow, the racism of the crowds in Arkansas seeking to prevent Black children from attending schools, on the one hand, with institutions of higher learning that have sought to overcome a history of discrimination and to embody the educational environment that was envisioned when Brown v. Board of Education was decided.

The majority decision pays lip service to our nation’s history of slavery and racism—it acknowledges the past, but concludes that the problem is solved, and we must move on. The court cherry-picks quotes from earlier decisions that state that the consideration of race is always odious.

Justice Sonia Sotomayor’s dissent has no patience for the majority’s claim: “At the risk of stating the blindingly obvious,… the Fourteenth Amendment was intended to undo the effects of a world where laws systematically subordinated Black people and created a racial caste system.” Thus, the consideration of race as one factor out of many in an admissions process that evaluates applicants holistically is consistent with the Constitution.

In Grutter v. Bollinger [539 U.S. 306 (2003)], which Students for Fair Admissions all but overruled, the court held that a “narrowly tailored” admissions policy adopted by the University of Michigan Law School, and which sought “to ensure that a critical mass of underrepresented minority students would be reached so as to realize the educational benefits of a diverse student body,” was consistent with the Fourteenth Amendment’s Equal Protection Clause.

In finding that the Law School had a compelling interest in attaining a diverse student body, the court cited to the “substantial” and “real” benefits of diversity. These benefits went beyond racial balancing, which, it noted, would be patently unconstitutional. “Rather,” it held, “the Law School’s concept of critical mass is defined by reference to the educational benefits that diversity is designed to produce.”

Namely, the court agreed that achieving diversity promotes the desirable goal of promoting “cross-racial understanding, helps to break racial stereotypes, and enables [students] to better understand persons of different races…. These benefits are important and laudable, because classroom discussion is livelier, more spirited, and simply more enlightening and interesting when the students have the greatest possible variety of backgrounds.” Id. (internal quotations, brackets, and citations omitted).

Further, the court accepted the findings of studies showing that “student body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.”

The Law School gave favorable consideration to individuals who, “by way of a particular strength, attainment, or characteristic — e.g., an unusual intellectual achievement, employment experience, non-academic performance, or personal background” —demonstrated “promise of making a notable contribution to the class.”

The Grutter court also took particular note of the business practices of major corporations in the United States. It found that “[t]hese benefits are not theoretical but real, as major American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas and viewpoints.”

The court in Students for Fair Admissions, though, seizing on dictum in Grutter that that race-based admissions programs should have “reasonable durational limits,” concluded that they all must end, and end now.

As Sotomayor states in her dissent, though, this determination “is based on the fiction that racial inequality has a predictable cutoff date. …A temporal requirement that rests on the fantasy that racial inequality will end at a predictable hour is illogical and unworkable.”

The court also finds that Harvard’s identification of educational benefits—including training future leaders in the public and private sectors; preparing graduates to adapt to an increasingly pluralistic society; better educating its students through diversity; and producing new knowledge stemming from diverse outlooks—are not measurable, and thus not subject to meaningful judicial review. “How many few leaders Harvard would create without racial preferences, or how much poorer the education at Harvard would be, are inquiries no court could resolve.”

But in making that observation, the court in reality is simply admitting that, unlike Harvard, U.N.C. and numerous other educational institutions, it assigns no value to these educational benefits.

The majority opinion also posits that when a university admits students “on the basis of race,” it “engages in the offensive and demeaning assumption that students of a particular race, because of their race, think alike.” But there is no such assumption. The consideration simply permits the university to assess whether and how the individual’s race, as one factor among many, and their experience perhaps imparted in some degree by their race, may have played a role in their development, in their achievements, their potential to excel, and their ability to contribute to the academic community on that university’s campus.

Thomas’s concurrence is a screed attacking affirmative action as a “discriminatory wrong” rejecting the possibility that racial diversity may yield any educational benefits. He reduces the experience of growing up black versus white as nothing more than a difference of “skin pigmentation.” This disingenuous claim assigns zero value to the lived experiences of millions of people, and to the numerous studies showing the systemic inequities facing underrepresented racial minorities—not only in education, but in numerous other societal opportunities.

Thomas disparages the universities’ claims that diversity is a positive goal as “the views of an alleged discriminator” that should be ignored. In response, Justice Sotomayor states that “equating state-sponsored segregation with race-conscious admissions policies that promote racial integration trivializes the harms of segregation and offends Brown v. Board of Education’s transformative legacy… These two uses of race are not created equal. They are not ‘equally objectionable.’”

Thomas also asserts that the practice of considering race as one factor in a holistic admission process punishes “today’s 17-year-olds…who are not responsible for instituting the segregation of the 20 Century.” In so arguing, the justice gives credence to the absurd notion that open discussion of the country’s history of racial injustice, or promoting diversity, equates to an accusation of racism.

He argues that consideration of race amounts to an effort “to label all blacks as victims.” Again, considering race as one factor among many in determining an individual’s ability to contribute to a university’s educational goals, and to benefit from them, does not render the individual a victim. To the contrary, it means to reflect the university’s expectation that the student will (as stated in Grutter) “contribute new knowledge stemming from diverse outlooks” to the university and the experience it aims to provide its students.

Justice Ketanji Brown Jackson, dissenting, states that Thomas “ignites too many more straw men to list, or fully extinguish, here.” She states that his “opinion … demonstrates an obsession with race consciousness that far outstrips my or [the defendant universities’] holistic understanding that race can be a factor that affects applicants’ unique life experiences.”

Justice Jackson writes, “With let-them-eat-cake obliviousness, …the majority pulls the ripcord and announces “colorblindness for all” by legal fiat. But deeming race irrelevant in law does not make it so in life.”

“No one,” she says, “benefits from ignorance. … The takeaway is that those who demand that no one think about race(a classic pink-elephant paradox) refuse to see, much less solve for, the elephant in the room—the race-linked disparities that continue to impede achievement of our great Nation’s full potential. Worse still, by insisting that obvious truths be ignored, they prevent our problem-solving institutions from directly addressing the real import and impact of “social racism” and “government-imposed racism” (quoting Thomas’s concurrence), thereby deterring our collective progression toward becoming a society where race no longer matters.

Justice Jackson characterizes the decision as “truly a tragedy for us all.”

The court’s majority opinion has undoubtedly given credence to popular arguments against diversity, based again on the notion that attempting to even the playing field, or provide access to those who have historically been denied it, amounts to a zero-sum game detrimental to those who must now compete in a more crowded field.


The court’s decision reflects a view that is contrary to that of major businesses and employers, and unfortunately will likely further divide Americans.

Philip M. Berkowitz is a shareholder of Littler Mendelson and co-chair of the firm’s U.S. international employment law and financial services practices. Johane Severin is of counsel at the firm.


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Reprinted with permission from the July 19, 2023 edition of the New York Law Journal©

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