The Harvard Crimson - Volume CL, No. 16: AFFIRMATIVE ACTION FALLS

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THE HARVARD CRIMSON

NEWS

JUNE 30, 2023

CONCURRENCES

Concurrences Castigate Harvard and UNC STRONG CRITICISM. Justice Clarence Thomas challenged the idea that Harvard and UNC are “trustworthy arbiters.”

BY PATON D. ROBERTS AND CLAIRE YUAN CRIMSON STAFF WRITERS

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oncurrences in Thursday’s Supreme Court decision, which severely restricted affirmative action in college admissions, further challenged the legal foundations and impacts of race-conscious admissions.

Alongside a majority opinion from Chief Justice John Roberts, Associate Justices Clarence Thomas, Neil M. Gorsuch, and Brett Kavanaugh backed a colorblind approach, attacked the efficacy of affirmative action policies, and took aim at the dissenting judges.

The ruling comes out of anti-affirmative action group Students for Fair Admissions’ first lawsuit against the University in 2014. In a 6-3 decision, the Supreme Court also ruled against the University of North Carolina and its admissions practices.

Thomas grounded his concurrence — extending nearly 20 pages longer than Roberts’ opinion — in an extensive history of Supreme Court decisions, legislation, and political theory.

He argued that affirmative action amounts to racial discrimination under the Constitution and provided an “originalist defense of the colorblind Constitution.” In his opinion, he also aimed to expand on the “flaws of the Court’s Grutter jurisprudence.”

Grutter v. Bollinger — a 2003 case allowing the continued use of race as a factor in student admissions processes — hinged on the “educational benefits of a diverse student body.”

Though Thomas acknowledged that “exposure to different perspectives and thoughts can foster debate, sharpen young minds, and hone students’ reasoning skills,” he found it “not clear how diversity with respect to race, qua race, furthers this goal.”

Rather than increasing the

overall number of Black and Hispanic stu- dents in college, Thomas argued, affirmative action serves to “redistribute individuals among institutions of higher learning, placing some into more competitive in-

stitutions t h a n t h e y otherw i s e wo u l d have a t tended.”

He wrote that policies like affirmative action are “leading to a world in which everyone is defined by their skin color, demanding ever-increasing entitlements and preferences on that basis.”

Thomas also took issue with the universities themselves.

Referencing Harvard’s past antisemitic admissions policies

and its “prominent role in the eugenics movement,” Thomas said neither Harvard nor UNC’s histories place

In his opinion, Thomas argues that Jackson believes “the legacy of slavery and the nature of inherited wealth” necessarily “locks blacks into a seemingly perpetual inferior caste.”

“Such a view is irrational; it is an insult to individ-

Thomas added.

Harvard has long denied that its race-conscious admissions program discriminates against Asian Americans.

“For almost a decade,

JULIAN J. GIORDANO—CRIMSON PHOTOGRAPHER

them as “trustworthy arbiters” of the necessity of affirmative action.

“Both Harvard and UNC have a history of racial discrimination,” he wrote. “But, neither have even attempted to explain how their current racially discriminatory programs are even remotely traceable to their past discriminatory conduct.”

“Those engaged in racial discrimination do not deserve deference with respect to their reasons for discriminating,”

Harvard has vigorously defended an admissions system that, as two federal courts ruled, fully complied with longstanding precedent,” top University leaders wrote in a statement.

Thomas also took aim at Associate Justice Ketanji Brown Jackson ’92. Jackson recused herself from the decision due to her former position on Harvard’s Board of Overseers — the University’s second-highest governing body — but wrote the dissent in the UNC case and joined part of Associate Justice Sonia M. Sotomayor’s dissent.

ual achievement and cancerous to young minds seeking to push through barriers, rather than consign themselves to permanent victimhood,” Thomas wrote.

In a concurrence joined by Thomas, Gorsuch argued that affirmative action violated Title VI of the Civil Rights Act of 1964 — adding support to Roberts’ reliance on the Equal Protection Clause of the 14th Amendment in the majority opinion.

Title VI states that any programs that receive federal funding will not be allowed to discriminate against people on

the grounds of “race, color, or national origin.” He highlighted the clause’s wording as both “powerful” and “easy to understand.”

Both Harvard and UNC receive millions of dollars in federal funding every year.

Echoing Roberts and Thomas, Gorsuch pointed to classification by race as an overly bureaucratic creation resting on “irrational” stereotypes.

Gorsuch also highlighted SFFA evidence suggesting that Harvard would be able to “nearly replicate” the student body’s current racial composition “without resorting to racebased practices” by instead adding boosts for socioeconomically disadvantaged students and reducing them for children of faculty, donors, and alumni.

Harvard has not announced any plans to stop the use of legacy, donor, or athlete preferences, even as peer universities and lawmakers challenge the practice.

In his concurring opinion, Kavanaugh argued that while “the effects of past racial discrimination still persist,” affirmative action should not be extended indefinitely into the future based on the Supreme Court’s precedents.

He pointed to Grutter, in which the majority opinion stated that race-conscious admissions policies “must have a logical end point.”

“I respectfully part ways with my dissenting colleagues on the question of whether, under this Court’s precedents, race-based affirmative action in higher education may extend indefinitely into the future,” he wrote.

“The dissents suggest that the answer is yes. But this Court’s precedents make clear that the answer is no.”

Kavanaugh pointed to the specific 25-year time limit set forth by the Supreme Court in Grutter, which he wrote was meant to ensure that “racebased affirmative action in higher education could continue only for another generation.”

“I would abide by that temporal limit rather than discarding it, as today’s dissents would do,” Kavanaugh wrote. paton.roberts@thecrimson.com claire.yuan@thecrimson.com

Supreme Court, President Biden Take Aim at Legacy Admissions

BY RAHEM D. HAMID AND THOMAS J. METE CRIMSON STAFF WRITERS

Legacy admissions are under renewed scrutiny following the Supreme Court’s Thursday decision to dramatically curtail the use of race in college admissions.

Though the Supreme Court is divided along ideological lines on the use of race as a factor in admissions, opposing opinions from conservative Justice Neil M. Gorsuch and Justice Sonia M. Sotomayor, the Court’s most senior liberal, found common ground in criticizing Harvard’s practice of giving preference to ALDC applicants — meaning athletes, legacies, primary relatives of donors, and children of faculty or staff — in admissions.

In oral arguments last October, several conservative justices had floated removing legacy preferences as a race-neutral alternative for Harvard’s admissions process.

President Joe Biden also took aim at legacy admissions in a press conference following the decision, announcing that he has instructed the Department of Education “to analyze what practices help build more inclusive and diverse student bodies and what practices hold that back — practices like legacy admissions and other systems that expand privilege instead of opportunity.”

In a concurring opinion released alongside the Court’s decision, Gorsuch — who voted with the majority in Thursday’s ruling — argued that Harvard’s ALDC preferences in its admis-

sion process “undoubtedly benefit white and wealthy applicants the most.”

“Its preferences for the children of donors, alumni, and faculty are no help to applicants who cannot boast of their parents’ good fortune or trips to the alumni tent all their lives,” Gorsuch wrote.

Gorsuch pointed to evidence submitted by Students for Fair Admissions last October that Harvard could “replicate the current racial composition of its student body without resorting to race-based practices.”

“Many other universities across the country, SFFA points out, have sought to do just that by reducing legacy preferences, increasing financial aid, and the like,” Gorsuch wrote.

wrote.

Harvard Dean of Admissions and Financial Aid William R. Fitzsimmons ’67 has long defended legacy preferences, with Fitzsimmons saying in a March interview that the policy only gives a “slight tip.”

In her dissent, Sotomayor also blasted legacy admissions but, unlike Gorsuch, argued that Harvard’s continued practice of giving preference to ALDC ap-

So often, we just accept that money, power, and privilege are perfectly justifiable forms of affirmative action.

Michelle Obama Former First Lady of the United States

SFFA contended that if Harvard provided applicants from socioeconomically disadvantaged backgrounds with “just half of the tip it gives recruited athletes” and eliminated all preference in admissions for applicants of donors, alumni, and faculty, they would yield the results that affirmative action policies produce.

“At trial, however, Harvard resisted this proposal,” Gorsuch

Source: Arcidiacono et al. 2019

plicants — who are 67.8 percent white — underscored the need for affirmative action. She referred to statistics provided in oral arguments this fall that showed “ALDC applicants make up less than 5% of applicants to Harvard” despite making up “around 30% of the applicants admitted each year.”

“Stated simply, race is one small piece of a much larger admissions puzzle where most of

the pieces disfavor underrepresented racial minorities,” she wrote. “That is precisely why underrepresented racial minorities remain underrepresented.”

In a statement Thursday, former First Lady Michelle Obama wrote that “we usually don’t question” whether students who are children of alumni or had access to “lavish” resources in high school belonged at selective colleges, despite such students be-

ing “granted special consideration for admissions.”

“So often, we just accept that money, power, and privilege are perfectly justifiable forms of affirmative action, while kids growing up like I did are expected to compete when the ground is anything but level,” she wrote. rahem.hamid@thecrimson.com thomas.mete@thecrimson.com