Why The Affirmative Action Decision Isn't Racist

Supreme Court Legal Points

All quotes were taken directly from the Supreme Court's opinion in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S., which was issued June 29, 2023.

Many come from Justice Clarence Thomas's concurring opinion, which begins on page 49.

What Both Sides Are Saying

During a July 9 interview with MSNBC, White House Press Secretary Karine Jean-Pierre stated the decision "[takes] away important constitutional rights that have been in place for a long time."

Criticizing the decision, Michelle Obama tweeted:

Today is a reminder that we've got to do the work not just to enact policies that reflect our values of equity and fairness, but to truly make those values real in all of our schools, workplaces, and neighborhoods.

The SCOTUS decision states:

A benefit to a student who overcame racial discrim­ination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose herit­age or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her ex­periences as an individual - not on the basis of race.

Admissions Data

At Harvard, the admit rates for typical African American applicants are on average over 4 times larger than if they had been treated as White.

At UNC, in-state African Americans’ admit rate is over 70% higher. For out-of-state applicants, the increase is more than 10-fold.

At UNC, 83% of African American students in the second highest "decile" (academic ranking) were admitted - compared to only 47% of Asian applicants.

Hispanic applicants only see an average 2.4 times larger admit rate than White students at Harvard (compared to African American applicants at over 4 times).

Based on the case data, researchers found socioeconomically advantaged (i.e., richer) African American and Hispanic applicants receive larger bumps (relative to advantaged Whites) than disadvantaged African American and Hispanic students (relative to disadvantaged Whites).

Why the Schools Lost

As SCOTUS Justice Clarence Thomas writes:

[T]he current race-conscious admissions programs take no account of ancestry and, at least for Harvard, likely have the effect of discriminating against some of the very same ethnic groups against which Harvard previously discriminated (i.e., Jews and those who are not part of the white elite).

According to the Court:

Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.

Clearing Up Confusion

White House Press Secretary Karine Jean-Pierre claimed the affirmative action decision is "taking away important constitutional rights that have been in place for a long time." However, receiving preferential admissions treatment based on race has never been a "constitutional right." It's been found legal in narrowly tailored situations.

When asked if the Supreme Court had gone "rogue," President Biden replied: "This is not a normal Court." However, according to SCOTUS: "We have never permitted admissions programs to work in [the way Harvard and UNC operate], and we will not do so today."

Many people worry that, moving forward, applicants can't talk about their race. However, the ruling specifically states:

Nothing [prohibits] universities from considering an applicant’s discussion of how race affected his or her life....