The End of Race-Conscious Admissions

What is left open

What an applicant says about himself. Nothing in the opinion is to be construed as prohibiting universities from considering an applicant's discussion of how race affected his or her life, whether through discrimination, inspiration or otherwise. But the discussion must be concretely tied to a quality of character or unique ability that the particular applicant can contribute: a benefit to a student who overcame racial discrimination must be tied to that student's courage and determination, and a benefit to a student whose heritage or culture motivated a leadership role must be tied to that student's unique ability to contribute. The student must be treated on his or her experiences as an individual and not on the basis of race.

And the warning attached. Universities may not simply establish through application essays or other means the regime held unlawful; what cannot be done directly cannot be done indirectly, the Constitution dealing with substance and not shadows.

The military academies. The United States as amicus contended that race-based admissions further compelling interests at the nation's military academies. No academy was a party, no court below had addressed the question, and the opinion expressly did not address it, in light of the potentially distinct interests the academies may present.

What happened next

Institutions moved to criteria the decision leaves untouched: family income, first generation status, the applicant's school and neighbourhood, and geography. Some ended legacy and donor preferences, which the litigation had made visible. Test-optional policies were reconsidered in both directions.

None of this is race-conscious in the sense held unlawful, and all of it is what American doctrine had always said should be tried first: a race-neutral alternative that achieves the interest defeats a race-conscious one at the narrow tailoring stage.

The measurable effect on the composition of entering classes is the subject of continuing study and is not a matter of law.

The Indian comparison

The comparison is at its sharpest here, and it can be put in one sentence: in the same decade, India added two reservations by constitutional amendment, in 2019 for economically weaker sections and in 2023 for women in the legislatures, while the United States ended race-conscious admissions by judicial decision.

Three reasons for the divergence.

Text. India amended; America did not, so the American practice depended on a doctrine and the doctrine was narrowed by the Court that made it.

Justification. India's is remedial and representational and written into the enabling clauses; America's, after Bakke, was educational and had to be defended as a compelling interest, which it eventually failed to do.

Instrument. India's is a percentage, which is measurable and administrable; America's was an unquantified weighing, which is precisely what the Court held could not be reviewed.

The last of these is an irony worth stating: the American doctrine forbade the measurable device and then struck down the unmeasurable one for being unmeasurable.

A worked example

An applicant writes in an essay that his family was excluded from a profession for generations and that this drove him to become the first in his family to qualify.

Permissible. The university may consider the discussion of how race affected his life, tied concretely to his determination and to what he can contribute.

Impermissible. The university may not, on reading the essay, apply a preference to him as a member of a racial group, or use essays as a means of reconstructing the regime held unlawful.

In India, the question would not arise: eligibility follows from membership of the notified class, subject to the creamy layer.

The cases

Facts. Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023), challenged the use of race as a factor in undergraduate admissions at Harvard, under Title VI, and at the University of North Carolina, under the equal protection clause.

Held, by Roberts CJ for the Court. The programmes could not be reconciled with the guarantees of the equal protection clause: they 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. Nothing in the opinion prohibits a university from considering an applicant's discussion of how race affected his or her life, so long as it is concretely tied to a quality of character or unique ability the applicant can contribute; but universities may not establish the unlawful regime indirectly through essays. Harlan J's dissent in Plessy was quoted: in the eye of the law there is no superior, dominant, ruling class of citizens, there is no caste here, and the Constitution is colour-blind and neither knows nor tolerates classes among citizens.

Why it matters here. It is the end of the American practice in education and the point at which the two systems on this syllabus reach their furthest separation.

Facts. Grutter v. Bollinger, 539 U.S. 306 (2003), had upheld the Michigan Law School's individualised programme and expressed the expectation that in twenty five years racial preferences would no longer be necessary.

Held, by the Supreme Court in 2003. A compelling interest in a diverse student body, narrowly tailored by individualised consideration.

Why it matters here. Its twenty five year sentence was argued in 2023 as a guarantee of continuation until 2028 and was held to have been only an expectation, which is a lesson about how a court's aspirational language is later read.

Distinctions

What beginners get wrong

"The Court banned affirmative action." It held two admissions programmes irreconcilable with the equal protection clause on four grounds, and expressly preserved consideration of an applicant's own account of how race affected his life.

"It applies only to State universities." Harvard is private and was decided under Title VI, on the same standard.

"Grutter was overruled." The opinion did not formally overrule it, and its reasoning was distinguished and dismantled; the twenty five year statement was held to be an expectation.

"Essays are a lawful workaround." The Court said in terms that what cannot be done directly cannot be done indirectly.

Limits and criticism

The line between an experience and a proxy is unstable, and every admissions office now has to decide where an essay stops being about character and starts being about group membership.

A rule that permits the story and forbids the status may reward articulate applicants and those coached to write in the permitted register.

The dissents' objection is that colour-blindness in a society shaped by colour is not neutrality but the ratification of an existing distribution, which is the antisubordination argument in [Formal and Substantive Equality].

And the comparative criticism is that both systems avoid the hardest question: America by refusing to measure disadvantage, India by measuring it once and by group.

Quick revision

1. Students for Fair Admissions, 600 U.S. 181 (2023); Harvard under Title VI, North Carolina under the equal protection clause, same standard.
2. Four grounds: no sufficiently focused and measurable objectives; race used in a negative manner; racial stereotyping; no meaningful end points.
3. Admissions are zero-sum: a benefit to some necessarily disadvantages others.
4. Grutter's twenty five years was an expectation, not a guarantee; periodic review cannot make unconstitutional conduct constitutional.
5. Left open: an applicant's own discussion of how race affected his or her life, tied concretely to character or unique ability.
6. Left open: the military academies, no academy being a party.
7. In the same decade India added two reservations by amendment; the United States ended one by decision.

Test yourself

1. State the four grounds of the decision. That the programmes lack sufficiently focused and measurable objectives warranting the use of race, the educational benefits claimed being commendable goals that cannot be subjected to meaningful judicial review. That they unavoidably employ race in a negative manner, because admissions are zero-sum and a benefit given to some applicants necessarily disadvantages others. That they involve racial stereotyping, by using race as a proxy for a viewpoint. And that they lack meaningful end points, Grutter's twenty five year statement having been only an expectation and periodic review being incapable of making unconstitutional conduct constitutional.

2. What is expressly left open? Two things. First, that nothing in the opinion prohibits a university from considering an applicant's discussion of how race affected his or her life, through discrimination, inspiration or otherwise, provided the discussion is concretely tied to a quality of character or a unique ability the applicant can contribute, so that a benefit for overcoming discrimination is tied to courage and determination and a benefit for a heritage-driven leadership role is tied to the ability to contribute. Second, the position of the nation's military academies, no academy being a party and no court below having addressed it, in light of the potentially distinct interests they may present.

3. Why does the decision reach a private university? Because Harvard receives federal financial assistance and is therefore subject to Title VI of the Civil Rights Act 1964, which forbids discrimination on the ground of race, colour or national origin under any programme so assisted. The Court treated the Title VI standard as the same as the equal protection standard applied to the University of North Carolina, so a single opinion disposed of both. The Constitution itself would not have reached Harvard, there being no state action, which is a reminder that American regulation of private institutions runs through statute.

4. What does the decade's contrast between the two systems show? That the divergence is structural rather than accidental. Between 2019 and 2023 India added two reservations by constitutional amendment, for economically weaker sections and for women in the legislatures, while the United States ended race-conscious admissions by judicial decision. India amended its text, so its argument is about who qualifies and how much; America did not, so its practice rested on a doctrine that the Court could and did narrow. And the instruments differ in the same direction: India's percentage is measurable and administrable, while the American weighing was unquantified, which is exactly the feature the Court held could not be reviewed.