The U.S. Supreme Court’s action last June upending 45 years of prior rulings on race-based policies in college admissions has prompted both universities and private entities to overreact, often time going beyond what the court decision required.
That was the analysis of panelists at the ABA Midyear Meeting in Louisville, Kentucky, of the court’s decision in Students for Fair Admissions v. Harvard, one of two cases related to race-based college admissions. In a 6-3 vote, the court said that the admissions programs at both Harvard and the University of North Carolina at Chapel Hill violated the Equal Protection Clause of the 14th Amendment.
“People are expanding the meaning of the decision,” said Cedric Merlin Powell, a professor of law at the University of Louisville Brandeis School of Law. He explained that both colleges and private institutions are pushing to “over-comply” by misinterpreting the decision, written by Chief Justice John Roberts.
The Feb. 3 panel, “Pathways to Equity: Navigating Racial Equality in the Aftermath of Students for Fair Admissions (SFFA),” brought together several law professors and the director of strategic initiatives of the Legal Defense Fund (LDF) in Washington. The hourlong program primarily focused on analyzing the Harvard case rather than the legal issues involving UNC.
But the court found in both cases that the elite colleges ― one private, one public ― had not properly applied the “strict scrutiny” standard of the law, which is the highest standard of review that a court uses to evaluate the constitutionality of governmental discrimination.
Jin Hee Lee, who is a lawyer for the LDF, which was founded in 1940 by Thurgood Marshall, who later became the first Black justice on the nation’s highest court, underscored the importance of affirmative action in terms of the civil rights community. But she recognized that conflicts in law arise in affirmative action cases.
“At the end of the day, this is really about the definition of equal protection,” Lee said, pointing to a key phrase of the 14th Amendment.
The panelists outlined the evolution of affirmative action cases in the U.S. starting with the Supreme Court’s decision in the Bakke case in 1978, in which the court declared affirmative action constitutional but invalidated the use of racial quotas. Several key decisions followed, including a decision about a decade ago in which the justice said by a 7-1 vote that the Equal Protection Clause permits the consideration of race in undergraduate admissions decisions but only under the “strict scrutiny” standard.
With a more conservative makeup of the court than a decade ago, the June 2023 decision upended that line of decisions. In its ruling, the court said the race-conscious admissions programs of the two schools failed to abide by the narrow restrictions laid out by the court in previous cases, noting that university programs “must comply with strict scrutiny, may never use race as a stereotype or negative and must — at some point — end.”
Vinay Harpalani, a professor at the University of New Mexico School of Law in Albuquerque, lamented that the case, which was brought on behalf of Asian students at Harvard, pitted “different people of color against each other.” He explained that many Asians are caught in the crossfire between “affirmative action” that seeks to boost those who face historical discrimination, such as Blacks, and “negative action,” which occurs when a "minus factor" is applied to an applicant relative to white candidates. Many believe that has happened to Asians because of high test scores and other favorable educational factors.