SCOTUS College Race Ruling May Impact Athlete Recruiting
The U.S. Supreme Court on Thursday held that race-based admission policies at Harvard and UNC Chapel Hill violate the Equal Protection Clause of the 14th Amendment. The ruling will require colleges to adapt their admissions policies, including for recruited athletes, so they do not discriminate on the basis of an applicant’s race.
Six of the nine justices sided with Students for Fair Admissions (SFFA), a nonprofit advocacy group that maintains it is illegal for colleges to explicitly favor, and disfavor, applicants based on race and reject what SFFA says are race-neutral alternatives. Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson dissented, with Jackson recusing herself from the Harvard decision.
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Writing for the majority, Chief Justice John Roberts detailed admissions policies the Court found to discriminate against Asian American applicants while enhancing the acceptance odds of other categories of applicants, including recruited athletes, legacy children, children of wealthy donors and applicants from other races. Admissions officers, Roberts explained, are instructed to favor applicants for reasons that are not based on academic merit. Athlete applicants fall into that category, and how the Court’s ruling is applied will have an impact on recruitment.
Roberts cited data showing that both Harvard and UNC’s admissions programs accept certain categories of applicants at higher rates than other applicants—particularly Asian American applicants—who possess similar academic profiles. UNC’s second highest academic category, for example, recently admitted 84% of black applicants compared to 58% of white applicants and 47% of Asian American applicants.
The problem with favoring applicants on the basis of their base, Roberts maintained, is the 14th Amendment–ratified three years after the Civil War ended–ensures that all races should have the same rights. That principle, Roberts underscored, was blatantly violated during the Jim Crow era, where black citizens were explicitly denied equal rights on the basis of their race and when the Supreme Court, through Plessy v. Ferguson (1896), ruled that segregation was lawful.
Roberts wrote that “eliminating racial discrimination means eliminating all of it,” including making distinctions between citizens as to their ancestry. Roberts reasoned that Harvard and UNC admissions programs violate the Equal Protection Clause since they “lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping and lack meaningful endpoints.”
But Roberts cautioned that colleges aren’t prohibited from “considering an applicant’s discussion of how race affected his or her life.” This suggests that while a school can’t accept a candidate because of their race, it can weigh how persuasively the applicant explains the role of race in shaping who they are. How the applicant can offer that explanation is unclear. Roberts warned, “Universities may not simply establish through application essays or other means the regime we hold unlawful today.”
The opinion also does not speculate on how applicant race could intersect with potential changes to college athletics. As Sportico has explored, there are several ways in which college athletes could be recognized as employees of their college, and possibly also their conference and the NCAA. Thorny questions could arise around whether those college–and job–applicants would be considered in the same data set for purposes of Constitutional scrutiny, as well as scrutiny under the Title VII of the Civil Rights Act of 1964.
In a concurring opinion, Justice Clarence Thomas challenged what he described as an “increasingly in vogue” view of the 14th Amendment that it “forbids only laws that hurt, but not help, blacks.”
Thomas repeatedly insisted the 14th Amendment explicitly bars discrimination on the basis of race. “It’s not even theoretically possible to ‘help’ a certain racial group without causing harm to members of other racial groups,” he maintained, since college admissions is “zero-sum” in that “students compete for a finite number of seats in each school’s entering class.”
Thomas also questioned how universities pursue a diverse student body and how they link racial diversity to education.
“It is not clear,” he wrote, “how diversity with respect to race, qua race, furthers [the goal of having a diverse student body]. Two white students, one from rural Appalachia and one from a wealthy San Francisco suburb, may well have more diverse outlooks . . . than two students from Manhattan’s Upper East Side attending its most elite schools, one of whom is white and other of whom is black.” Thomas also wondered why colleges “blind themselves to other forms of diversity, including religion.”
Thomas cautioned that, as a black American, he is “painfully aware of the social and economic ravages which have befallen my race and all who suffer discrimination.” But he asserted the country should live up to its founding principle that “that all men are created equal, are equal citizens and must be treated equally before the law.”
Justice Jackson, who is black, enunciated a starkly different viewpoint in her dissent.
“Our country has never been colorblind,” she maintained in a defense of affirmative action in college admissions. Jackson emphasized data pointing to disparities in outcomes for Americans relative to their race.
“Despite being about 13% of the population, Black people make up for only about 5% of lawyers,” she noted, adding that only a handful of Fortune 500 CEOs are black.
Jackson also disputed the characterization of UNC’s admissions policies by her colleagues who ruled it unconstitutional. While the majority and concurring opinions described the policy as automatically favoring black candidates because they are black, Jackson wrote that is an inaccurate and misleading view. She said admissions reviewers “may” rather than “must” consider race, and they can consider any race or ethnicity. Jackson emphasized the admissions policy is holistic and weighs numerous factors in pursuit of university goals.
Jackson concluded by saying the majority ruling “obstructs our collective progress toward the full realization” of the 14th Amendment and represents “truly a tragedy for us all.”
