The Affirmative Action decision created a precedent that the Equal Protection Clause means “race-neutral” policies

In a 40-page opinion authored by Chief Justice John Roberts ’76, all six members of the Court’s conservative wing ruled that Harvard’s and UNC’s admissions programs violated the Equal Protection Clause of the 14th Amendment.

The Equal Protection Clause of the Fourteenth Amendment states that all U.S. citizens must receive “equal protection of the laws” and that their “privileges or immunities” cannot be curtailed without due process of law.

Students for Fair Admissions, the group that first sued Harvard in 2014, had filed a separate lawsuit against UNC — but the Supreme Court issued one ruling for both cases.

Associate Justice Ketanji Brown Jackson ’92 did not participate in any part of the Harvard case, having recused herself due to her former position on the Board of Overseers, the University’s second-highest governing body. She authored a dissent in the UNC case.

Students for Fair Admissions — the anti-affirmative action group that sued Harvard and UNC in 2014 — had asked the Supreme Court to overturn Grutter v. Bollinger, its landmark 2003 decision that preserved race-conscious admissions.

But the Supreme Court did not go that far.

Instead, the Court ruled that Harvard’s and UNC’s admissions policies did not satisfy “strict scrutiny” — the most stringent standard of judicial review that all exceptions to the Equal Protection Clause must pass.

Roberts wrote that while the stated goals of Harvard’s and UNC’s admissions policies are “commendable” including exposing students to diverse outlooks and “training future leaders,” these are “not sufficiently coherent for purposes of strict scrutiny.”

Per Richard H. Sander ’78 — a law professor at the University of California, Los Angeles — the “thrust of the decision” was not to say that “earlier courts were wrong” but that “earlier courts tried to give universities assurance and universities were abusing the system so we’re just going to stop it.”

“I was surprised that they didn’t explicitly overrule Grutter — for example — but after reading it, I thought it was a smart choice on their part,” Sander said, calling the opinion “very well crafted.”

Richard T. Ford, a professor at Stanford Law School, said he found it “interesting” that the Supreme Court “seemed to want to avoid acknowledging” whether or not Grutter had been overruled, making it appear — from Ford’s perspective — “that they wanted to make this look less radical than it really is.”

“Justice Roberts — and then also when one looks at Justice Kavanaugh’s concurrence — went to great pains to claim that they weren’t overruling their past precedents and instead were just applying them,” Ford said. “Now, that’s quite odd because — of course — the past precedents allowed for the use of race in affirmative action and this opinion appears to foreclose the use of race in affirmative action.”

Roberts added that the admissions programs in use by the two schools “also fail to comply with the Equal Protection Clause’s twin commands” and that they “require stereotyping — the very thing Grutter foreswore.”