Supreme Court Slashes Affirmative Action, Rejecting Catholic Universities’ Support for Race-Based Admissions

Today, the Supreme Court issued its decision in Students for Fair Admissions Inc. v. Harvard, holding that affirmative action in the college admissions process is unconstitutional as it violates the Equal Protection Clause of the Fourteenth Amendment.

Chief Justice John Roberts authored the majority opinion. The Court’s central objection to affirmative action in college admissions is that it offends the Fourteenth Amendment’s Equal Protection Clause. In Brown v. Board of Education, a unanimous Court argued that the right to education “must be made available to all on equal terms.” A year after Brown, the Court reinforced Brown by holding that schools must admit students “on a racially non-discriminatory basis.” In the present case, Roberts wrote that, “the Fourteenth Amendment guaranteed ‘that the law in the States shall be the same for the black as for the white; that all persons…shall stand equal before the law[.]’”

Harvard claims that it uses affirmative action to ensure racial diversity in each incoming class of students. However, recent studies such as a 2018 econometric study by Peter Arcidiacono on Harvard’s admissions process show that the college’s use of affirmative action advantages black and Hispanic applicants at the detriment of Asian applicants. The Court took note of this result from Harvard’s race-based application process and reviewed it through the highest judicial standard of review: strict scrutiny. This standard is satisfied when the defendant shows that their policy promotes an interest “of the highest order” with a means that is the least restrictive method to accomplishing the policy’s goal. The Court found this standard of review appropriate to use when analyzing affirmative action for “racial and ethnic distinctions of any sort are inherently suspect.” In Regents of California v. Bakke, the Court allowed universities to consider race in their admissions process so long as it acted as a “plus” for an applicant’s case, not a “minus.” 

Harvard was required by the Court to show three things. First, their process must satisfy strict scrutiny. Next, it must not use race as a tool to stereotype or disadvantage certain groups. Lastly, Harvard must show that its use of affirmative action is temporary and will eventually end. Because the Court found Harvard’s interests in using affirmative action to be too abstract and unmeasurable, the majority concluded that Harvard is not able to satisfy a meaningful standard of judicial review, let alone strict scrutiny. With the first prong negated, and with evidence that Asian applicants were disadvantaged in Harvard’s application process, the Court concluded that Harvard’s admissions policy offends the Equal Protection Clause and struck the policy down. 

By ruling against Harvard, the Court by extension also rejected the appeal of 57 Catholic universities across America. Prominent universities supporting the brief included The Catholic University of America and The College of the Holy Cross. Spearheaded by Georgetown University, these institutions filed an amicus curiae brief to the Supreme Court in support of Harvard’s admissions process. The Catholic schools argued in their brief that affirmative action is necessary for advancing their academic and religious missions. To the former, they argue, “Diversity creates a learning environment that furthers the pedagogical goals of Catholic colleges.”

Regarding their religious mission, the colleges contend that the Catholic faith emphasizes the human dignity of every individual and the need for service to the community, specifically underserved groups, and that affirmative action honors these portions of the Catholic tradition. They also submit that, “the Jesuit educational tradition recognizes the value of diversity as necessary to the best pedagogy…Holy Cross believes that “[f]ostering a true and fruitful dialogue requires a diverse community of participants” and the “Jesuit mission has always sought to engage with people of all cultures, value systems and faith traditions.”

The colleges also cite St. Paul’s letter to the Galatians and his statement that “[t]here is neither Jew nor Greek, there is neither slave nor free… for you are all one in Christ Jesus” in defense of affirmative action. Ironically, affirmative action divides applicants by their race, which is wholly antithetical to St. Paul’s exhortation that in Christ, racial divisions are irrelevant.

While the colleges could legitimately argue that racial diversity aids their academic mission, their point on affirmative action helping their religious mission seems more far-fetched. To sustain their argument on a Free Exercise basis, the colleges must adequately argue that affirmative action (or racial diversity) is something inherently mandated by Catholic doctrine, not by missions and goals that happen to be incidentally taken up by Catholic schools. As the Court in Wisconsin v. Yoder held, secular reasons, despite how valid and virtuous they may be, cannot support an appeal to the Free Exercise Clause, only religious reasons can. While the Catholic universities may have an argument that diversity is essential to their academic mission, it is not religious in nature and thus cannot be sustained by the Free Exercise Clause.