I just spent the day reading
all 237 pages of the new SFFA v. Harvard, and SFFA v. UNC decision from the Supreme Court released today. I hope this summary/Q&A could help contextualize discussions surrounding the new legal landscape of affirmative action particularly as it relates to medical school admission.
Disclaimer: I am not a legal professional and do not guarantee accuracy of my conclusions. The content provided herein is for informational purposes only and should not be considered as legal advice.
Conflict of interest statement: I am a "high stat" ORM applying this cycle that probably stand to benefit from the decision.
1. How did the Supreme Court rule in SFFA v. Harvard/UNC (hereinafter SFFA.) and how is the opinion different from the previous case of Grutter v. Bollinger? How will this affect medical school admission?
Grutter was a case decided in 2003 that allowed universities to take race into account in admissions, provided they satisfy a standard called "strict scrutiny," which is a series of requirements universities must meet in order to use race legally. While "strict scrutiny" is supposed to be very hard to meet, in practice it is was quite easy for universities practicing "holistic admission," and Harvard and UNC were both ruled to have admission programs that satisfy strict scrutiny by the district and circuit courts.
The Supreme Court today did not explicitly overturn Grutter, but they made the strictly scrutiny impossible to actually satisfy for any university, overturning Grutter in effect. In other words, racial classification is no longer legal in admissions.
2. Harvard and UNC are undergraduate institutions. Why do the ruling apply to medical schools (and all graduate/professional schools)?
The ruling applies to the 14th Amendment to the Constitution and Title VI of the Civil Rights Act of 1964. All public institutions are bound by the Constitution, while private medical schools receive Federal funding and are thus bound by Title VI.
The text of the
Equal Protection Clause of the 14th Amendment reads:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The text of
Section 2000d, Title VI, Civil Rights Act of 1964 reads:
No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
Previous Supreme Court decisions have ruled that these two laws mean the same and a standard that applies to one also applies to the other.
3. Why don't the Supreme Court make legacy/donor/children of faculty/athlete admissions illegal?
The Supreme Court lacks the authority to do so since it can only interpret existing law, not create new ones. There are currently no laws that prohibit discrimination based on legacy/donor/children of faculty/athlete status. In contrast, Title VI and the 14th Amendment prohibit discrimination based on race.
4. Why is the ruling so long at 237 pages?
The ruling contains 6 separate opinions. Chief Justice Roberts delivered the opinion of the Court. Justices Thomas, Gorsuch and Kavanaugh wrote concurring opinions. Justices Sotomayer and Jackson wrote dissenting opinions. In addition to stating their own positions, opinions also includes rebuttals and comments on other opinions, which combined with the history and nuance of the case made it extremely long. Only the opinion of the Court, supported by a majority of 6 Justices, carries the force of law.
5. What does each opinion say?
It would be very difficult to include every point made, but in brief:
Chief Justice Robert's arguments are summarized above in 1.
Justice Thomas additionally argues that the decision is aligned with an originalist interpretation of the Constitution (Thomas is an originalist jurist), that racial classification inherently creates racial stigma, and that Affirmative Action may actual harm its intended beneficiary of Blacks and Hispanics.
Justice Gorsuch argues that it is not necessary for the decision to be a constitutional case about the 14th Amendment. Rather, Title VI should be considered separated from the Equal Protection Clause, and racial classifications be ruled illegal based on Title VI.
Justice Kavanaugh argues that the SFFA decision does not overturn precedents and is in fact in the spirit of Grutter's 25 year expiration limit.
Justice Sotomayer argues neither the Constitution nor Title VI are "race blind" or prohibit race conscious policies that have benign goals.
Justice Jackson argues that given the large gaps in various social outcomes between the different races, race conscious admission are still essential for society.
6. How will the rules actually affect admission policies?
Following today's decision, applicants who are rejected from selective programs in the 2023-2024 admission cycle would have the ability to sue the programs and allege unlawful racial discrimination. Schools will likely preemptively change their admission policies to comply with the new decision.
7. What does Chief Justice Roberts mean by "despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today"?
The exact extent of policies that this statement prohibits will probably be elucidated by the courts by some future cases. However, at a minimum, it would be illegal for a school to "guess" the race of an applicant by using proxies such as last names, zip codes, or participation in ethnic organizations and make admission decisions based on that.
8. Why are "race neutral alternatives," which featured heavily in Fisher and in the decisions of the lower courts, not extensively examined in SFFA? What are the implications?
Race neutral alternatives are policies whose purpose is to manipulate the distribution of the admitted races, but do so without explicit reference to race. For example, suppose the Pritzker School of Medicine at UChicago wants to increase the number of Blacks students, but it cannot do so directly. Instead, it starts a programs to recruit students who grew up from the South side of Chicago which is overwhelmingly Black. Pritzker can justify this publicly by saying it wants to contribute to its local community, which is a facially race neutral reason, but privately it created the program in order to increase Black representation on campus.
Race neutral alternatives are currently legal. However, it is facing legal challenges in multiple Federal Courts, including in Coalition for TJ v. Fairfax were a race neutral program by Thomas Jefferson High School was challenged for benefiting Blacks and Hispanics at the expense of Whites and Asians. The District Court ruled for the plaintiffs, but the Circuit Court reversed. This case, alone with several other similar cases, is very likely to reach the Supreme Court. The fact that the Supreme Court left the question of the legality of race neutral alternative open today may be in anticipation of a future ruling specific to this question. For more information on this topic, I highly recommend the paper
The Magnet-School Wars and the Future of Colorblindness published in the Stanford Law Review.
If race neutral alternatives are ruled illegal, it would deal a crippling, cataclysmic blow to efforts to increase the number of Blacks and Hispanics and reduce the number of Asians and Whites at any educational institutions.