Students For Fair Admissions (SFFA), a nonprofit dedicated to fighting racial preferencing in schools via litigation, has appealed their case alleging racial discrimination against Asian-American applicants to Harvard to the Supreme Court. If the case is granted cert, the Court is well-positioned to reverse generations of precedent and rightly overturn the constitutionality of affirmative action.
In their petition for certiorari, SFFA explicitly asks the Court to consider overturning its 2003 decision in Grutter v. Bollinger. Grutter was a 5-4 decision that was made almost a lifetime ago in SCOTUS terms. Four of the five justices who formed the majority are no longer on the bench and Justice Thomas, an outspoken critic of affirmative action, remains the only dissenter from that case who could hear this case against Harvard. The court has been reinvented and conservative justices now hold a 6-3 majority. If the case is taken, those who abhor the practice of politically correct racial discrimination that is euphemistically rebranded as “affirmative action,” can hold out some hope for its destruction.
Grutter saw a similar set of facts where a white woman was rejected from admission to the University of Michigan Law School despite having extraordinary test scores that outperformed some minority applicants who were granted admission. Grutter held that consideration of race in admissions does not violate the Fourteenth Amendment to the Constitution or Title VI of the Civil Rights Act. In his dissent joined by Justices Kennedy, Thomas, and Scalia, Chief Justice Rehnquist called out the hypocrisy of the decision. “[T]o extend offers of admission to members of selected minority groups in proportion to their statistical representation in the applicant pool… is precisely the type of racial balancing that the Court itself calls “patently unconstitutional.” Without a doubt, this dissent influenced the petitioners in this case.
SFFA outlines in their petition how years of racial preferencing for Hispanic and African-American applicants has hurt the Asian-American ones and not afforded them equal opportunities. For years the Harvard admissions department, led by their dean, William Fitzsimmons, has meticulously chosen each incoming class of students in order to maintain the previous class’s racial makeup. Their goal is not to have a drop in the proportion of minority students admitted. To do that, they must pay close attention to the ethnicity of all those who apply and make admissions decisions that are heavily, if not exclusively, influenced by it.
The racial disparities are shocking. Asian-American applicants in the 5th academic decile were almost twelve times less likely to be admitted than African-Americans and five times less likely than Hispanics of the same academic pedigree. One can’t help but feel the pain of any applicant who is so tragically close to admission into Harvard but never having that dream realized, not because of anything they did or could change, but because of an admissions office that “lopped” them to preserve Harvard’s “ethnic stats” from the year prior. It is an ugly, sad, and patently un-American injustice.
If the Court were to vote to hear the case, a break from precedent in Grutter would be very much on the table with the Court in its best position in a generation to overturn the legality of affirmative action. Justice Thomas, perhaps the most conservative member of the Court, has long been outspoken against affirmative action saying in his Grutter dissent, “I believe blacks can achieve in every avenue of American life without the meddling of university administrators… The Constitution does not…tolerate institutional devotion to the status quo in admissions policies when such devotion ripens into racial discrimination.” Even Chief Justice Roberts, the most moderate member of the Court who has been the source of frustration for conservatives in the past years, has written against race-conscious policies.
All of this is good and hopeful news for anyone who cares for fairness. Spare me the euphemisms that call it something else—racial discrimination is an ugly practice that flies in the face of all that America upholds. No matter who benefits from it, as Chief Justice Roberts said “it is a sordid business this divvying us up by race.” Any judge whose first duty is to the text of Article VI should see this practice for what it is, and rule against it.
The views expressed in this article are the opinion of the author and do not necessarily reflect those of Lone Conservative staff.