The Fourteenth Amendment of the United States Constitution states that no state shall enact or enforce any law that denies equal protection under the laws to any person within its jurisdiction. Despite this provision, the Supreme Court of the United States (USSC) has, for over 50 years, allowed universities to consider race as a factor in their admissions procedures.
However, in the cases of Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina, the USSC determined that race-based affirmative action violates the equal protection clause of the Fourteenth Amendment as well as Title VI of the Civil Rights Act. Title VI ensures that no person in the United States can be excluded from or discriminated against in any program or activity receiving federal financial assistance based on their race, color, or national origin.
To better understand how the USSC decides cases involving the Equal Protection Clause, it is important to be aware of the three levels of review or "tests" employed to assess whether governmental classifications violate this clause. These levels include Strict Scrutiny, Middle Level Review, and Rational Basis. For the purpose of this article, we will focus on Strict Scrutiny and its application.
Strict scrutiny is utilized when evaluating any statute or policy based on a "suspect classification" or one that impairs a "fundamental right." Under this scrutiny, the law in question is upheld only if it is necessary to further a compelling government interest and is narrowly tailored. The categories considered "suspect" encompass race, national origin, and, in certain instances, alienage. "Fundamental" rights primarily include the right to vote, access to the courts, and the right to migrate interstate. Strict scrutiny is applied in cases dealing with race, such as preferential admissions, due to these considerations.
In the case of Grutter v. Bollinger in 2003, the USSC ruled that the University of Michigan's law school policy, which allowed the consideration of race as a factor in admissions, passed the Strict Scrutiny test. The Court determined that the policy was narrowly tailored and served a compelling objective. It recognized that the University of Michigan Law School specifically tailored its use of race to achieve the educational benefits that arise from a diverse student body. Hence, if race is employed as one factor among many in admissions procedures, it does not violate the Equal Protection Clause.
However, in the recent decision of Students for Fair Admissions v. Harvard (consolidated with Students for Fair Admissions v. University of North Carolina) on June 29, 2023, Chief Justice John Roberts, writing for the majority in a 6-3 decision, declared that race has no place in university admissions policies. While acknowledging the commendable aim of promoting diversity, Chief Justice Roberts argued that the interests behind these policies lack sufficient coherence. He expressed uncertainty regarding how to measure progress with affirmative action and when the use of race should cease in admissions policies.
Chief Justice Roberts also challenged Harvard's assertions on various grounds. One issue was that although Harvard claimed that considering race as a "plus" in admissions was not a "negative factor" for any applicant, it led to a significant decrease in the admission of Asian Americans. Despite Asians representing approximately 5 percent of the U.S. population and constituting the third largest underrepresented minority group, they not only faced a lack of preference but also had to achieve higher SAT scores compared to other students, including whites. For instance, in 2020, the average math SAT score for Asian or Asian-American students was 632, compared to 547 for white students, while the overall average was 523 out of a possible 800. Research from Princeton University reveals that Asian students must score an average of 140 points higher on the SAT than whites to have the same chance of admission to private colleges, and 450 points higher than African-Americans. Essentially, Asians have been penalized for their academic excellence and test-taking abilities. Chief Justice Roberts emphasized the need to treat students based on their individual experiences rather than their race.
Previously, in cases such as Bakke and Grutter, the Court approved university policies that aimed to foster a diverse student body. Universities were allowed to strive for diversity in their admission processes, believing that a diverse student body enhances the university experience. However, they can no longer employ race as a factor in achieving this diversity.
Associate Justice Neil Gorsuch criticized Harvard for its lack of socioeconomic diversity and its preference for legacies, athletes, children of donors, and children of faculty, which undoubtedly benefit white and wealthy applicants. Justice Brett Kavanaugh focused on the notion that affirmative action was initially considered a temporary measure, despite its existence for over four decades. In his opinion, Kavanaugh cited former Justice Sandra Day O'Connor's statement in the landmark case Grutter v. Bollinger (2003), predicting that 25 years from now, the use of racial preferences would no longer be necessary to advance the approved interest. This observation raises questions for Brazil about the duration of its affirmative action programs in university admissions. Unfortunately, Brazil lacks a significant public debate on whether or when these programs should end, regardless of their practical consequences. Renowned African-American researcher Thomas Sowell has argued, with statistical evidence spanning decades, that African-American students admitted to universities through affirmative action often face significant mismatches. This means that they make up a considerable percentage of students who fail or drop out not due to lack of ability, but because they were inappropriately placed in elite institutions that exceeded their capacities. Sowell concludes that these students would have been better off attending universities better suited to their abilities.
Justices Sonia Sotomayor and Ketanji Brown Jackson, in their opinions, focused not on the idea of a diverse student body but rather on the ongoing need to address the negative and enduring effects of historical subjugation faced by African-Americans. However, it is important to note that the Court, in the Bakke case of 1978, held that remedying past societal discrimination and injustice is not a compelling interest for schools to pursue in admissions.
Given the recent developments in the United States regarding the termination of affirmative action in university admissions, it is crucial for Brazil to reflect upon its own affirmative action programs and their potential duration. While the practical consequences of these programs should be evaluated, it is essential to initiate a significant public debate in Brazil on whether these programs should continue or if there is an appropriate timeline for their eventual conclusion. Brazil should carefully consider the arguments presented in the U.S. cases, particularly those highlighting the potential mismatches and unintended consequences of affirmative action. By engaging in thoughtful deliberation and taking into account the abilities and needs of individual students, Brazil can ensure that its university admissions process promotes fairness and maximizes opportunities for all, even in the absence of affirmative action policies.
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