By Janette Ansolabehere
Students for Fair Admissions v. University of North Carolina
Students for Fair Admissions v. Harvard University
In a 6-3 opinion the Court held that race-based affirmative action violates the equal-protection clause of the Fourteenth Amendment and Title VI of the Civil Rights Act (the prohibition of discrimination based on race). The Court applied the Strict Scrutiny standard (does the policy further a “compelling interest” and is “narrowly tailored” to achieve that interest). The majority found that the affirmative action policy failed both tests. In the opinion, authored by Justice John Roberts, the Court concluded that the schools’ interests in diversity is “commendable” but “they are not sufficiently coherent” because it wasn’t clear how to measure if the schools’ goals were reached and how the schools’ consideration of race in the admissions process should end.
Roberts pointed out that although Harvard claimed that the use of race as a “plus” in admissions is never a “negative factor” for any applicant, there was a substantial decrease in admission of Asian Americans. Roberts went on to write that, “[n]othing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” In other words, “the student must be treated based on his or her experiences as an individual—not on the basis of race.”
In a concurring opinion, Justice Neil Gorsuch criticized Harvard for its lack of social-economic diversity compared to its apparent preferences for legacies, children of donors, athletes, and children of faculty which add up to approximately one-third of the undergraduate class, a policy that “undoubtedly benefits white and wealthy applicants.” The Court effectively overruled the landmark 2003 case, Gutter v. Bollinger.
In their dissents, Justice’s Sonia Sotomayor and Ketanji Brown Jackson focused on the need to continue to remedy the devastating and ongoing effect of the Nation’s history of subjugating Black Americans. Unfortunately, in the 1978 case, Regents of the University of California v. Bakke, the Court rejected the goal of remedying past societal discrimination, thus injustice is not a compelling interest for a school to use in admission policies.
Note: The US Department of Education has initiated an investigation into Harvard’s admission policies after a lawsuit was filed three weeks ago filed alleging Harvard University admissions policy favored predominately white children of wealthy alumni and donors violates the Federal Law. It appears that the lawsuit was filed with an eye to Justice Gorsuch’s discussion of favoring certain predominantly white applicants on non-academic reasons.
Further information: The Supreme Court Overturns Fifty Years of Precedent on Affirmative Action, The New Yorker, June 29, 2023.
303 Creative LLC v. Elenis
In a 6-3 decision the Court ruled that Colorado could not enforce a state anti-discrimination law against a Christian website designer who does not want to create wedding websites for same-sex couples because doing so would violate her First Amendment right to free speech. Justice Gorsuch wrote for the majority stating that the state could not, “force an individual to speak in ways that align with [the state’s] views but defy her conscience about a matter of major significance.” The Court indicated that the decision provided protection to business owners who supply similar services involving speech (artists, speechwriters, movie directors, etc.)
The dissenting Justices argued for a different interpretation of the Colorado Anti-discrimination Act (CADA prohibits discrimination in the sale of publicly available goods and services.). The Justices argued that because CADA target regulation of conduct, not speech, and “the act of discrimination has never constituted protected expression under the First Amendment,” the majority erred in its rationale. They argued that the First Amendment did not provide the petitioner with a special exemption from Colorado law requiring her to serve members of the public on equal terms.
Interestingly, it appears that the request for a website was not actually made by Mr. Elenis who is currently married (to a woman). However, it does not appear that that fact will affect the outcome of the case because the issue is very likely to arise again. In other words, the issue is not moot. Legal experts do not expect the fact that the online request to Petitioner was allegedly not made by Elenis will result in the Court withdrawing the opinion.
Further information: Supreme Court Rules Website Designer Can Decline to Create Same-Sex Wedding Websites, Amy Howe, Howe on the Court, republished on SCOTUS Blog.
Biden v. Nebraska
In a 6-3 opinion, the Court ruled that the Biden Administration did not have the authority to cancel nearly $400 billion dollars in outstanding student loans. In an earlier case the Court held that individual borrowers lack standing to challenge the debt-relief plan. However, in Biden the Court ruled that states did have standing to challenge the program. According to the majority, the HEROES Act which authorizes the Secretary of Education to provide relief to borrowers during a national emergency (such as suspending required payments as was done by Betsy DeVos during COVID) did not give the administration the power to adopt the program.
The dissent disagreed and argued that the HEROES Act delegated the authority for the action to the Secretary of Education.
Further Information: Supreme Court Strikes Down Biden, Amy Howe, Howe on the Court, republished on SCOTUS Blog.
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