Initial Thoughts on SFA v. Harvard/UNC
Equal Protection vs Equal Protection. Process vs Substance.
Some initial thoughts on Students for Fair Admissions v. President and Fellows of Harvard College whose ruling was just announced today. I’m reading the Majority opinion itself and probably both Dissents and writing down my thoughts as I go. These are my thoughts while reading the Syllabus section of the Majority opinion. Here they are:
Legacy admissions are more toxic than racial admissions in terms of honoring U.S. citizens right to “life, liberty, and the pursuit of happiness.” Which is more toxic to the Equal Protection Clause of the 14th Amendment – an amendment that is fresh in my mind since I recently read the Second Founding: How the Civil War and Reconstruction Remade the Constitution (2019)? The four pieces of information that Harvard considers at the “lop” stage are legacy status, recruited athlete status, financial aid eligibility, and race. To me, strategy for those who believe how I believe might be to zero in on financial aid eligibility that itself is tailored towards factoring in systemic and institutional racism. To me it is understanding how that person got to be who they are and whey they are; including factors that they did not choose but were merely born with.
We should remember why we have the 14th Amendment in the first place. The 14th Amendment is the longest amendment to the U.S. Constitution and it was, alongside the 13th and 15th, one of three Reconstruction Amendments passed between April 1864 and February 1869. The 14th Amendment has five Sections, but the most prominent for this conversation at this moment is Section 1 which is Constitutionally monumental; it reads:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
After the Civil War, there was a political and social fight to pass a 14th Amendment because newly freed black Americans and already free black Americans, and their allies, understood the need for it. There were so many outstanding questions after the Civil War. Remember the Emancipation Proclamation freed people held as slaves in the Confederacy, not anywhere else. The Civil War didn’t abolish slavery; the 13th Amendment did. And the 14th Amendment was also needed to, as Foner (2019, 55) puts it, to help establish “what rights should the former slaves enjoy and who should enforce them”?
The petitioner of the Harvard and another similar case that was ruled today, University of North Carolina, Students for Fair Admission, advocates on behalf of it’s and it’s supporters “textual” reading of the Equal Protection Clause of the 14th Amendment and also Title VI of the Civil Rights Act. Admissions that factor in “race” at all, according to this group and according to today’s SCOTUS majority, violate the Constitution
I agree with the Supreme Court’s view stated in the syllabus section of the Harvard ruling itself which mentions and accepts culpability that after the Civil War:
“Despite the early recognition of the broad sweep of the Equal Protection Clause, the Court alongside the country quickly failed to live up to the Clause's core commitments. For almost a century after the Civil War, state-mandated segregation was in many parts of the Nation a regrettable norm. This Court played its own role in that ignoble history, allowing in Plessy v. Ferguson the separate but equal regime that would come to deface much of America.”
Jim Crow: black Codes, literacy tests, convict leasing, white supremacy - all reigned when the Court didn’t explicitly protect black Americans equally.
So, as you see, this is a fascinating complex question that requires political philosophy; pros and cons considered and reconsidered; and consequentialism needs to be considered alongside what value we are trying to maximize and how so. Ultimately, my opinion, as it always is, will be: I think this is a good ruling if it furthers what I think should be furthered; and it’s a bad ruling if it does the opposite.
There are other important values one might believe should be maximized over a basic, textual definition of equal protection. One might be a historically informed choice that does, on some margins, help historically disenfranchised groups of people in a way that is reasonable and that does have the aim of getting to a world where “equal protection of the laws” would actually mean what those words clearly are trying to address. So: I agree with Harvard’s stated goal of their process which is to not see a “dramatic drop-off” in applicants from people who are minorities, including racial.
I think I disagree with the Court’s Majority opinion that the Respondent’s argument—from what I know about it from reading the news before today—doesn’t meet reasonable “strict” scrutiny requirements. These admissions policies or some that are similar that would actually help historically, and contemporary marginalized groups ensure their full equality—by considering factors that are real—are in the interest of the government. I will read the ruling for more details on if these distinctions were sufficiently compelling (the second strict scrutiny factor) but going into this I probably lean towards the distinctions are “tailored” enough to prove the government has an interest in Affirmative Action for historically maginalized minority groups.
Was Harvard and University of North Carolina violating the Constitution?
If they were, is that the worst thing in the world?
Maybe it is.
But maybe it’s not.
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I might publish more of what I write about this ruling as I read through it. I might not. I’m particularly anticipating the dissent because I always learn a lot from the dissent because it’s the side of the Court that is describing why, in detail, why the majority of itself is wrong. And SCOTUS is partly where American historiography and mythos is made.