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What was the legal reasoning behind the affirmative action decision?

The Supreme Court of the United States pictured on Monday, Oct. 31, 2022.

Students for Fair Admissions v. UNC, a case decided by the U.S. Supreme Court in June that struck down affirmative action in higher education, could have wide-ranging impacts on University admissions, athletics and employment for people of color.

But what was the majority's legal reasoning behind the decision? How did the majority justify striking down affirmative action policies at UNC and Harvard?

What is strict scrutiny?

UNC's application readers and a secondary committee both considered race among many other factors when reviewing the applications, according to the opinion written by Chief Justice John Roberts.

SFFA sued both universities in 2014 on the grounds that affirmative action violates the equal protection clause of the 14th Amendment, which says that the government cannot deny equal protection under the law to any citizen.

Exceptions to the equal protection clause must pass what is known as strict scrutiny, meaning the policy must be a narrowly-tailored solution to a compelling government interest. A 2013 case on admissions policies determined that affirmative action was subject to strict scrutiny.

How did strict scrutiny and precedent apply in this case?

Roberts wrote about the history of the "separate but equal" doctrine established in Plessy v. Ferguson and its eventual overturning in Brown v. Board of Education. Brown, he wrote, got to the "core" of the 14th Amendment: eliminating "all governmentally imposed discrimination based on race."

He then referenced the precedent set by Justice Lewis Powell in the 1978 case Regents of University of California v. Bakke. That decision — a contentious one that produced six different opinions — determined that race could only be used as a "plus" as part of a comprehensive examination of the applicant. He also wrote that the positives of diversity on campus constituted a compelling government interest, fulfilling the first half of strict scrutiny.

The Court upheld Powell's ruling in the case Grutter v. Bollinger in 2003. Grutter set out two guidelines for future affirmative action policies: first, a university cannot stereotype people of a certain race or assume that they all think or act alike; and second, a university cannot use race as a "negative." This meant, according to the Court, that race could not be used in a way that "unduly harmed nonminority applicants."

Grutter also required that affirmative action policies must end, giving a 25-year estimate on when affirmative action may no longer be necessary for higher education — which would have been 2028.

Roberts wrote that UNC's admissions policies did not meet any of these three criteria, nor did they meet strict scrutiny.

  • He wrote that because UNC's argued compelling interest — the benefits of a diverse campus — were not measurable by the Court, it could not be considered a compelling interest under strict scrutiny, nor were they conducive to an eventual end of affirmative action.
  • Because of the observed admission of fewer Asian American students under the affirmative action programs, Roberts wrote that the programs were used as a "negative."
  • On stereotyping, he wrote that admitting students based on race was inherently assuming all or most students of a racial group think or act alike.
  • Roberts wrote that the policies lacked a constitutional endpoint. Using racial balancing at a university, he wrote, was "patently unconstitutional." Second, the benefits of a diverse campus could not be used as an endpoint because the Court would not be able to measure them. Third, he wrote the Grutter timeline for 2028 was only a projection, not a mandate for continuance. Last, on frequent review by universities of their policies, he wrote, "Grutter never suggested that periodic review can make unconstitutional conduct constitutional."

What does the dissent say?

Justice Ketanji Brown Jackson wrote one of the two dissents in the case. She argued that nothing in the Constitution prohibits the use of race in admissions processes and that claiming the consideration of race in admissions is unfair ignores historic and systemic racism.

At UNC, race was not treated as a negative, but as a small section of the applicant's picture, she wrote.

"With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces 'colorblindness for all' by legal fiat," Jackson wrote. "But deeming race irrelevant in law does not make it so in life. And having so detached itself from this country’s actual past and present experiences, the Court has now been lured into interfering with the crucial work that UNC and other institutions of higher learning are doing to solve America’s real-world problems."


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Ethan E. Horton

Ethan E. Horton is the 2023-24 city & state editor at The Daily Tar Heel. He has previously served as a city & state assistant editor and as the 2023 summer managing editor. Ethan is a senior pursuing a double major in journalism and media and political science, with a minor in history.