Reflections on how The Supreme Court Affirmative Action in College Admissions Opinion Denies the Reality of Racism in the U.S. and its Impact on People of Color
October 4, 2023
In Students for Fair Admissions v. Harvard College (June 2023), the U.S. Supreme Court struck down race-conscious affirmative action programs at Harvard College and the University of North Carolina. What is striking about this case is not just its findings that these specific programs are unconstitutional, but the case goes even further to declare that race no longer matters, and that racism is dead. Racism is a public health crisis, and the Supreme Court has added to this crisis.
In Students for Fair Admissions v. Harvard College (June 2023) (“SFFA”), the U.S. Supreme Court struck down race-conscious affirmative action programs at Harvard College and the University of North Carolina (UNC). What is striking about this case is not just its findings that these specific programs are unconstitutional, but also that the case sweeps aside its own constitutional jurisprudence and goes even further to declare that race no longer matters, and that racism is dead. That is, dead for purposes of the promise of substantive equality for underrepresented people of color under the 14th Amendment’s Equal Protection Clause. Given SFFA’s broad assertions about race and racism and the loss of another tool to address structural racism—at a time when legislators are steadily diminishing this toolbox—this case should cause us to pause and consider the public health implications.
Twenty years ago, in Grutter v. Bollinger the Court held that colleges have a compelling interest in a diverse student body, including racial diversity. Race-conscious affirmative action admissions programs seeking to enroll meaningful representation of underrepresented racial groups could do so as part of a holistic process that allows for individualized consideration of each applicant. This means race is not determinative but one plus factor among many that might add to a college’s diversity (e.g., community service or artistic talent). Such a process, Grutter concluded, does not unconstitutionally unduly burden applicants from other racial groups.
In SFFA, the Court no longer recognizes itself. To begin, it finds Harvard and UNC’s compelling interests in achieving a diverse student body to be judicially unreviewable and “imponderable,” even though they are fundamentally identical to the interests in Grutter. This includes interests like undoing stereotypes, promoting cross-racial understanding, training better leaders, and preparing students to work in a pluralistic society—in other words, benefits that flow from having a racially diverse student body.
SFFA takes Grutter’s holding that race-based affirmative action programs must not unduly burden applicants who are not members of the relevant underrepresented groups and ignores the part where Grutter says that a holistic review process does not have this effect. Instead, SFFA concludes that race-conscious affirmative action programs inescapably operate as an unconstitutional “negative” since “[c]ollege admissions are zero-sum. A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.” To put it plainly, under SFFA, an affirmative action admissions program that does what it is meant to do—increase meaningful representation of underrepresented students—will always be unconstitutional.
The majority’s opinion in SFFA further asserts that an admissions program that recognizes that communities of color have shared lived experiences is racist—or as the Court frames it unconstitutional racial “stereotyping.” The Court takes UNC and Harvard to task for arguing that race says something about who a person is and that Black students often bring experiences that White students do not. It characterizes these views as “pernicious stereotype[s]” that make “ancestry” based judgments and are rooted in a belief that people of color “at the very least [think] alike in the sense of being different from nonminority students.”
This framing reduces the reality of structural racism to debunked beliefs about racial essentialism (the belief that race is biologically based and generates shared moral, intellectual, and other differences). Race, however, is a social construct with a well-documented social purpose. By selectively characterizing the impacts of race and racism as a belief that people of color think alike, the Court easily concludes that seeking race-based diversity offends the Equal Protection Clause. This conclusion is puzzling since from Grutter onwardthe Court had continued to hold that a racially diverse student body is a compelling interest that helps dismantle racial stereotypes.
What are some of the public health impacts of SFFA? To start, SFFA reinforces structural racism by using the law to create and sustain institutional practices that disadvantage people of color. Colleges in states that already banned affirmative action saw declines in Black, Latino/a, and Native American students. While claiming to promote equality under the law, SFFA will similarly limit access for these groups and inflict further harms.
Education is also a social determinant of health, and this includes access to college. At the height of the COVID-19 pandemic, the ability to work remotely was influenced by one’s level of education. An analysis of conditions at the start of the pandemic found that individuals with bachelor’s degrees had greater access to telework (62 percent) compared to individuals with only a high school degree (22 percent). The ability to telework helped offset job loss, although the benefit did vary by race. Other research later concluded that increasing Black and Hispanic people’s access to a four year college would help close telework gaps—a gap critical to COVID-19 exposure and infection. Making college less accessible to people of color is bad for public health, including during pandemics.
SFFA is also bad for public health because it adopts the same problematic narrative driving state legislative bans on so-called critical race theory and diversity, equity, and inclusion programs. They all tell the same flawed story that acknowledging structural racism is racist. We need only look to the Florida Department of Education’s demand that teachers teach middle schoolers that Black people benefited from slavery to see how absurd this is. Imagine a Black youth hearing these words from a Black teacher. A Black youth hearing these words from a White teacher. A White youth hearing this from a Black teacher.
These experiences will not be the same. Race matters. Should we, like the Court, recoil at the idea that Black students (and teachers) will have unique experiences because of their race? Must we be beholden to the belief that all people who aren’t White “think alike”? Surely not. How are we to address racism as a public health crisis while our governmental institutions are increasingly mandated to operate as if race does not matter, even as the Court and legislatures simultaneously further embed racism into law? To achieve health equity, we must be able to explicitly talk about race and racism, including well-documented inequities in the social determinants of health, to design interventions that address these experiences.
The 14th Amendment’s Equal Protection Clause has been an imperfect tool for undoing racism, just as affirmative action programs and race-neutral methods have been. But for the last few decades, affirmative action has been a tool that positively impacted underrepresented students of color. Racism is a public health crisis, and the Supreme Court has added to this crisis.
This post was written by April Shaw, Senior Staff Attorney, Network for Public Health Law – Health Equity. The Network for Public Health Law provides information and technical assistance on issues related to public health.
The legal information and assistance provided in this document do not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state. Support for the Network is provided by the Robert Wood Johnson Foundation (RWJF). The views expressed in this post do not represent the views of (and should not be attributed to) RWJF.