Between “Measurability of Objectives” and “Meaningful End Points” on Affirmative Action Programs and Racial Discrimination: SCOTUS Decision in Students for Fair Admissions Inc. v. President and Fellows of Harvard College

Today, the Supreme Court of the United States (SCOTUS) issued its Decision striking down (6-3) the race-conscious admissions processes of both Harvard College and the University of North Carolina in Students for Fair Admissions Inc. v. President and Fellows of Harvard College. While Chief Justice Roberts’ Opinion, penned on behalf of the majority of the Court, could more appropriately be analyzed in any number of constitutional law commentaries and blogs (already proliferating here, here, and here), the reasoning in the Opinion itself is of interest when contrasted with the United States’ international treaty obligations under the International Convention on the Elimination of Racial Discrimination (ICERD).  In a nutshell, SCOTUS held that race-conscious admissions processes, programs, and policies of both Harvard College and the University of North Carolina violated the Fourteenth Amendment (Equal Protection Clause) of the United States Constitution, by failing to:

1) “operate their race-based admissions programs in a manner that is sufficiently measurable to permit judicial review under the rubric of strict scrutiny”;

2) “articulate a meaningful connection between the means they employ and the goals they pursue”; and

3) “comply with the Equal Protection Clause’s twin commands that race may never be used as a ‘negative’ and that it may not be operate as a stereotype”; and

4) provide a “logical end point as [Grutter v. Bollinger] required.”

The concluding paragraphs of this Opinion point to a way forward for universities in their admissions decisions:

“For the reasons provided above, the Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points. We have never permitted admissions programs to work in that way, and we will not do so today.

At the same time, as all parties agree, nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. See, e.g., 4 App. in No. 21–707, at 1725– 1726, 1741; Tr. of Oral Arg. in No. 20–1199, at 10. But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today. (A dissenting opinion is generally not the best source of legal advice on how to comply with the majority opinion.) “[W]hat cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows,” and the prohibition against racial discrimination is “levelled at the thing,not the name.” Cummings v. Missouri, 4 Wall. 277, 325 (1867). A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race.

Many universities have for too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice.” (Emphasis added.)

With this Decision, SCOTUS thus permits an individualized assessment of the applicant’s experiences as an individual, and not exclusively or solely on the basis of race alone, as the basis for university admissions decisions.  It noted that in Regents of University of California v. Allan Bakke, the Court refused to find a sufficiently compelling interest in a university’s goal of “remedying societal discrimination” through race-conscious admissions policies.  SCOTUS maintained the same position in the present case involving Harvard College and the University of North Carolina, noting Justice Harlan’s famous dissent in Plessy v. Ferguson stating that  “[o]ur Constitution is color-blind.”

This post contrasts the main points of this SCOTUS decision with international human rights law, and specifically the United States’ own treaty obligations under the International Convention on the Elimination of Racial Discrimination (ICERD), to which the United States has been a State Party since 1994.  How does the SCOTUS position explicitly rejecting the use of race-conscious admissions to “remedy societal discrimination”, ultimately converting university admissions exclusively into a university’s individualized assessment of each application’s experiences as an individual (which may include how race affects his or her life), sit with the United States’ treaty obligations under ICERD?

ICERD and Remedying Societal Discrimination

The Preamble to ICERD makes it clear that remedying societal discrimination is part of the objects and purposes of this treaty:

“…Reaffirming that discrimination between human beings on the grounds of race, colour or ethnic origin is an obstacle to friendly and peaceful relations among nations and is capable of disturbing peace and security among peoples and the harmony of persons living side by side even within one and the same State,

Convinced that the existence of racial barriers is repugnant to the ideals of any human society,

Alarmed by manifestations of racial discrimination still in evidence in some areas of the world and by governmental policies based on racial superiority or hatred, such as policies of apartheid, segregation or separation,

Resolved to adopt all necessary measures for speedily eliminating racial discrimination in all its forms and manifestations, and to prevent and combat racist doctrines and practices in order to promote understanding between races and to build an international community free from all forms of racial segregation and racial discrimination…” (Emphasis added.)

To this end, ICERD defines “racial discrimination” expansively: “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.” [ICERD, Article 1(1)]. However, ICERD explicitly carves out certain measures from being considered ‘racial discrimination’: “Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.” [ICERD, Article 1(4)]

It could be argued that race-conscious admissions programs — such as that which Harvard College and the University of North Carolina had in place — might constitute such permissible special measures, so long as they do not lead to the maintenance of separate rights for different racial groups and they are not continued after the objectives for which they were taken have been achieved.

Measurability of Objectives of Race-Conscious Admissions Programs

But this is precisely what the SCOTUS decision warns against.  When the stated objectives of the race-conscious admissions programs were, among others, achieving diversity in the student body to “train future leaders” or “enhance appreciation, respect, and empathy”, the Court found these objectives not empirically measurable, and thus effectively “standardless”.  The text of the SCOTUS decision does not indicate if Harvard College and UNC ever invoked Article 13(1) of the International Covenant on Economic, Social and Cultural Rights as part of the purposes of seeking a diverse student body: “…education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.” (Emphasis added.). Under SCOTUS’ constitutional law lens, the “standardless” or non-measurability of the objectives of the race-conscious admissions programs would not survive strict scrutiny under the Equal Protection Clause.

In contrast, under international human rights law, permissible special measures for the sole purpose of securing adequate advancement of certain racial or ethnic groups requiring such protection to ensure their equal enjoyment or exercise of human rights and fundamental freedoms would not be deemed racial discrimination.  Indeed, the very same obligations required of States Parties to ICERD do not lend themselves to the same “measurability of objectives” or “meaningful end points” that the SCOTUS decision emphasized as necessary for race-conscious admissions policies to survive strict scrutiny tests and not violate the Equal Protection Clause:

Article 2

1. States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end:

(a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation;

(b) Each State Party undertakes not to sponsor, defend or support racial discrimination by any persons or organizations;

(c) Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists;

(d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization;

(e) Each State Party undertakes to encourage, where appropriate, integrationist multiracial organizations and movements and other means of eliminating barriers between races, and to discourage anything which tends to strengthen racial division.

2. States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. These measures shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.

Article 5

In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:

(a) The right to equal treatment before the tribunals and all other organs administering justice;

(b) The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution;

(c) Political rights, in particular the right to participate in elections-to vote and to stand for election-on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service;

(d) Other civil rights…

(e) Economic, social and cultural rights, in particular:

(i) (v) The right to education and training…”  (Emphasis added.)

Thus, special and concrete measures to ensure the adequate development and protection of certain racial groups can be taken by States Parties to ICERD for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms, so long as these measures do not maintain any further unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.  If the objectives of race-conscious admissions programs is to ensure student body diversity as the means to realize the right to education, enable persons to participate effectively, strengthen human rights and fundamental freedoms as part of the international human right to education, it could be reasonably argued (within the purview of international human rights law) that special and concrete measures that result in separate rights for different racial groups could terminate only after such objectives have been achieved. Admittedly, however, ascertaining whether such objectives have indeed been achieved will be both a qualitative and quantitative exercise, not easily susceptible to the “measurability” that the SCOTUS decision emphasized to survive the strict scrutiny test under the Equal Protection Clause.

Meaningful or Logical “End Point” as Grutter v. Bollinger Required

Because SCOTUS has never agreed to consider race-conscious admissions programs as part of “remedying societal discrimination”, but only an extraordinary exception to a “colour-blind constitution”, Grutter v. Bollinger endorsed Justice Powell’s view in Bakke that student body diversity is a compelling state interest for which race-conscious admissions programs would survive strict scrutiny.  However, SCOTUS imposed limits in Grutter: “The school could not “establish quotas for members of certain racial groups or put members of those groups on separate admissions tracks.” Id., at 334. Neither could it “insulate applicants who belong to certain racial or ethnic groups from the competition for admission.” Ibid. Nor still could it desire “some specified percentage of a particular group merely because of its race or ethnic origin.” Id., at 329–330 (quoting Bakke, 438 U. S., at 307 (opinion of Powell, J.)). These limits, Grutter explained, were intended to guard against two dangers that all race-based government action portends. The first is the risk that the use of race will devolve into “illegitimate . . . stereotyp[ing].” Richmond v. J. A. Croson Co., 488 U. S. 469, 493 (1989) (plurality opinion). Universities were thus not permitted to operate their admissions programs on the “belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue.” Grutter, 539 U. S., at 333 (internal quotation marks omitted). The second risk is that race would be used not as a plus, but as a negative—to discriminate against those racial groups that were not the beneficiaries of the race-based preference. A university’s use of race, accordingly, could not occur in a manner that “unduly harm[ed] nonminority applicants…“[A]ll race-conscious admissions programs [must] have a termination point”; they “must have reasonable durational limits”; they “must be limited in time”; they must have “sunset provisions”; they “must have a logical end point”; their “deviation from the norm of equal treatment” must be “a temporary matter.” 

But what is a meaningful end point for student body diversity, and who decides that the objective of student body diversity has been met?  Again, because SCOTUS required measurability of objectives to race-conscious admissions programs, locating that “meaningful end point” was equally standardless in this case.  Much of SCOTUS’ observations about the precarity of the very same categories relied upon by Harvard College and UNC (e.g. think “Asian Americans” without being differentiated into “South Asians” or “East Asians”, or “Hispanics” without being differentiated further according to country of origin in Latin America, South America, or Central America) were apt illustrations of the problem of opacity and ambiguity of methodologies in race-conscious admissions programs. In the end, SCOTUS provides a methodological correction to avoid any pernicious injury that it foresees could result from these pathologies, by introducing its own methodology for admissions:  universities have to do individualized assessment that treats each person as an individual with unique experiences that might have been affected by race, rather than relying on racial biases, group suppositions, or perceived stereotypes as they might attach to any group categorization.

International human rights law, in contrast, embraces that States Parties can take measures to remedy societal (historical or ongoing) discrimination, including special and concrete measures for certain racial groups that are maintained only up to the point of achieving the objectives of such special and concrete measures to guarantee the full and equal enjoyment of human rights and fundamental freedoms by such racial groups.  The only logical or meaningful “end point” for such special and concrete measures under international human rights law is precisely the achievement of the objectives of these measures.  Thus, unlike Grutter’s estimate that 25 years (or up to 2028) was enough to achieve the objective of student body diversity, international human rights law does not set a numerical timeline for the realization of the objective of equal enjoyment of all human rights and fundamental freedoms.

Conclusion:  Contrasts Between US Constitutional Law and International Human Rights Law

My purpose here is not to relitigate the SCOTUS decision in SFFA v. President and Fellows of Harvard College, but to invite some purposeful reflection on the unique position that the United States finds itself in today.  On the one hand, SCOTUS is the governmental organ entrusted with the duty of interpreting Title VI of the Civil Rights Act and the Equal Protection Clause under the Fourteenth Amendment of the US Constitution, which is what it did in issuing its decision yesterday in SFFA. On the other hand, the United States is a State Party to the International Convention on the Elimination of Racial Discrimination, and thus is internationally obligated to take active measures to remedy societal discrimination (past or present or continuing in effects).  How the United States will design such domestically lawful and internationally compliant measures — whether in the form of race-conscious admissions programs that will survive the SFFA parameters or through other forms of affirmative action programs that will not offend the Equal Protection Clause as decided by SCOTUS in SFFA — opens up a new line of international human rights law and constitutional law research questions ahead.