SHOUTING COULD BE HEARD just outside the Supreme Court one Thursday afternoon in June, as two groups of protestors gathered in response to the Justices’ latest ruling.
The crowd wasn’t large—fewer than 100 people—but tensions were high, exacerbated by the scorching Washington, DC, heat.
On one side, protestors blasted music on a portable speaker, yelled through a megaphone, and held up “Yes! Affirmative Action” signs. On the other, a group of parents and students stood behind a banner that read “Stop Asian American Discrimination.” Each group was trying to drown out the other.
Less than an hour earlier, the Supreme Court had issued its joint decision in Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina, two consolidated cases that challenged race-based admissions in higher education.
In a 6-3 vote, the Court ruled that Harvard and UNC’s respective admissions processes, which favored some races over others, violated the Fourteenth Amendment’s Equal Protection Clause—signaling the end of affirmative action.
Students for Fair Admissions v. Harvard
THE DECISION WAS NINE YEARS in the making. In 2014, a group called Students for Fair Admissions (SFFA) filed a lawsuit against Harvard, alleging that the Ivy League institution’s admissions process discriminated against Asian American applicants.
At the center of concern was Harvard’s longtime use of “personality ratings,” which have disproportionate negative impacts on Asian American students. Admissions officers routinely used the subjective ratings to paint Asian students as dull, less likeable, and less kind.
Harvard’s bias against Asian Americans is an open secret—so well known, in fact, that the Princeton Review college admissions guidebook even instructs Asian American applicants to avoid disclosing any information that could be construed as stereotypically Asian. This includes withholding aspirations of being doctors or mathematicians.
Even though many Asian American applicants have grades and test scores well above the national average, qualified candidates are often turned away because they belonged to a racial group that the school finds “less likable” than others. In the absence of personality ratings, if the school considered academic merits alone, Asian American admissions would increase by 11%.
SFFA believed this process was intentionally designed to limit the number of Asian American students accepted into Harvard. The group pointed to startling statistics about the school’s admissions practices: For example, Harvard was more likely to admit an African American applicant in the fourth-lowest. tier of academic performance than an Asian American applicant in the highest tier. That certainly seems like discrimination; but Harvard pushed back against SFFA’s claims, arguing that while race was one factor considered, it was not discriminatory because it was part of a “secret sauce” process and the public should trust that it served to benefit everyone.
But while Harvard was assuring the public of its good intentions, it was simultaneously going to great lengths to guard its secrets.
Uncovering Sealed Records
IN 2018 THE HARVARD CASE was heard in district court, with Judge Allison Burroughs presiding. Present in the courtroom was researcher, reporter, and tenured Harvard professor Jeannie Suk Gersen. Throughout the trial, attorneys from both sides approached the bench for sidebar conversations with Judge Burroughs. Gersen assumed that these sidebar conversations would later become part of the public record, as is customary.
Those conversations, as it turns out, were sealed.
Gersen didn’t think much of it at the time. Judge Burroughs ultimately ruled that Harvard’s admissions process was “not the result of intentional discrimination.” The First Circuit Court of Appeals agreed. SFFA petitioned the Supreme Court to hear its cases against Harvard and UNC, and the Court accepted, scheduling oral arguments for November 2022. Pacific Legal Foundation filed amicus briefs in support of SFFA, explaining how the schools’ admissions policies violated the Equal Protection Clause and perpetuated false racial stereotypes.
Just before the Supreme Court heard oral arguments, the Justices made a last minute request to the district court, asking them to hand over the entire trial record.
It was this request that reignited Gersen’s interest in those sealed sidebar conversations from 2018. Clearly, the Supreme Court thought they were relevant. Shouldn’t the public have access too?
So Gersen asked the district court for access. She didn’t anticipate much resistance; after all, she was a reporter and it was her job to make sure the public had all the facts of the case. But Harvard quickly jumped in to block Gersen’s request.
Harvard’s attorneys alleged that the sealed records included “personal and confidential information that should remain sealed.”
Judge Burroughs finally decided that she would unseal some conversations but not others. In particular, she said, she wanted to keep sealed a conversation about email correspondence between Harvard’s dean of admissions and a Department of Education representative who was responsible for ensuring that the school did not engage in discrimination.
The judge claimed that while the emails contained “a very poor, ill-advised” and “in bad taste joke,” she did not find it relevant to the case and wanted to protect the privacy of the two men involved. What she did say was the joke in question “referenced certain Asian stereotypes” and “anti-Asian remarks.”
Gersen pressed Judge Burroughs, saying that “the interest of the public in knowing what that joke was, the actual content, the words, would be extremely important.” To which Judge Burroughs told her that her persistent efforts to unseal the records were an act of “greed.”
Much to Harvard’s dismay, the contents of the emails would not be hidden for long. Gersen managed to uncover what Harvard was trying to hide.
Five years earlier, a Department of Education official had emailed Harvard’s dean of admissions a joke memo. The official was tasked with overseeing a federal investigation that, coincidently enough, was looking into claims that Harvard had engaged in Asian discrimination. Email correspondence suggests he wasn’t taking the investigation too seriously; the official had developed a cozy friendship with the Harvard dean.
The joke memo was written from the perspective of a Harvard admissions officer. The memo profiles a fictional Asian applicant whose accomplishments and hard work are dismissed on account of his race. “We just don’t need a 132-pound defensive lineman,”
the memo quips.
The official prefaced his email to Harvard’s dean by calling his own joke “really hilarious if I do say so myself!”
The memo—and the fact that Harvard fought so hard to keep it hidden—only serves to emphasize how important the Supreme Court’s Students for Fair Admissions decision is.
For years, Harvard and other schools asked the public to trust their motives—to believe they were discriminating against applicants with the best of intentions. That’s an ongoing trend: The more institutions inject race into their policies and systems, the more they demand the public trust that they’re advancing noble goals.
But Harvard’s secret memo is a vivid example of why we shouldn’t trust institutions to discriminate based on race. When we allow race-based admissions, a joke email like the Harvard memo is highly relevant: It speaks to hidden motives. But the Constitution eliminates the need to trust institutions to discriminate in the “right” way.
Unlike Department of Education officials, the Constitution empowers individuals, not institutions. No institution, no matter how elite or well-connected, should be allowed to pick winners and losers based on race.
The Supreme Court Weighs In
THE SUPREME COURT’S Students for Fair Admissions decision signals a return to the constitutional principles that protect individual rights
In the majority opinion, Chief Justice John Roberts wrote:
The entire point of the Equal Protection Clause is that treating someone differently because of their skin color is not like treating them differently because they are from a city or from a suburb, or because they play the violin poorly or well. ‘One of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities’ (Rice). But when a university admits students ‘on the basis of race, it engages in the offensive and demeaning assumption that [students] of a particular race, because of their race, think alike’ (Miller).
Concurring, Justice Clarence Thomas wrote:
Given the history of discrimination against Asian Americans, especially their history with segregated schools, it seems particularly incongruous to suggest that a past history of segregationist policies toward blacks should be remedied at the expense of Asian American college applicants.
Critics of the ruling, including dissenting Justices, decried the majority as radical for stripping certain minority students of educational opportunities given to them through racial preferences.
In her dissent, Justice Sonia Sotomayor wrote:
At bottom, the six unelected members of today’s majority upend the status quo based on their policy preferences about what race in America should be like, but is not, and their preferences for a veneer of colorblindness in a society where race has always mattered and continues to matter in fact and in law.
Chief Justice Roberts had some harsh words for the dissenting Justices. He wrote:
Most troubling of all is what the dissent must make these omissions to defend: a judiciary that picks winners and losers based on the color of their skin. While the dissent would certainly not permit university programs that discriminated against black and Latino applicants, it is perfectly willing to let the programs here continue. In its view, this Court is supposed to tell state actors when they have picked the right races to benefit. Separate but equal is ‘inherently unequal,’ said Brown. It depends, says the dissent.
Justice Thomas also pointed out:
… these policies appear to be leading to a world in which everyone is defined by their skin color, demanding ever-increasing entitlements and preferences on that basis. Not only is that exactly the kind of factionalism that the Constitution was meant to safeguard against, see The Federalist No. 10 ( J. Madison), but it is a factionalism based on ever-shifting sands.
In light of this ruling, Harvard, UNC, and other colleges and universities will no longer be able to continue their perverse obsession with race—a huge win in the fight for equality.
In light of this ruling, Harvard, UNC, and other colleges and universities will no longer be able to continue their perverse obsession with race—a huge win in the fight for equality.
But it’s not the end of the fight: PLF is asking the Supreme Court to review our case challenging the use of racial proxies in the admissions process at Thomas Jefferson High School in Fairfax, Virginia. If schools shouldn’t be able to judge applicants by race, neither should they be able to hide race-based judgments behind proxies like ZIP Codes.
As Justice Thomas so perfectly said in closing remarks in his concurrence:
I hold out enduring hope that this country will live up to its principles so clearly enunciated in the Declaration of Independence and the Constitution of the United States: that all men are created equal, are equal citizens, and must be treated equally before the law.