How Affirmative Action Lost at the Supreme Court

Published

2 years ago

September 7, 2023

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The end of affirmative action in university admissions has been prophesied since 2003, when the Supreme Court issued its decision in Grutter v. Bollinger. In the majority opinion, Justice Sandra Day O’Connor wrote that “25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” That reckoning has now arrived, and five years earlier than predicted: In June, the Supreme Court ruled 63 that public universities must stop favoring certain applicants, and disfavoring others, based on their race or ethnicity.

“Eliminating racial discrimination means eliminating all of it,” Chief Justice John Roberts declared, writing for the majority in Students for Fair Admissions v. President and Fellows of Harvard College. “In other words, the student must be treated based on his or her experiences as an individualnot on the basis of race.”

For everyone who values fairness, individuality, and nondiscrimination, this decision could not have come soon enough. The perniciousness of the admissions system was on full display, thanks to the details of the case. The plaintiffan advocacy organization that filed suits against Harvard and the University of North Carolina at Chapel Hill (UNC)persuasively demonstrated that race-based admissions schemes systematically disadvantaged Asian-American students. UNC, for instance, admitted more than 80 percent of its black applicants but less than 70 percent of its white and Asian applicants. (Reason Foundation, the nonprofit that publishes this magazine, submitted an amicus brief in support of the plaintiff.)

At Harvard, discriminatory practices were overt and began with recruitment. Admissions officials would send letters of interest to black and Hispanic high schoolers who received a score of 1100 or more on the SAT. Asian Americans were ignored unless they received at least a 1350. During the actual admissions process, students were sorted into “deciles”10 levels of academic performance. Asian Americans in the top decile were less likely to get in than black students in the fourth decile.

The plaintiff also submitted evidence that Harvard admissions officers tended to give Asian Americans negative scores on the personality rating, a wholly subjective criterion. Favoritism also extended to white applicants from what Harvard describes as “sparse country”: rural states with historically low enrollment numbers. The result was that applicants were judged not solely on the merits of their individual achievements but on immutable characteristics like their race and place of origin.

These schemes, according to the Supreme Court, violated federal law and, in UNC’s case, the 14th Amendment’s Equal Protection Clause. “Many universities have for too long wrongly concluded that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned, but the color of their skin,” wrote Roberts. “This Nation’s constitutional history does not tolerate that choice.”

Title VI of the 1964 Civil Rights Act prohibits entities that receive federal funding from practicing racial discrimination. But affirmative actiona scheme to benefit racial minorities in hiring, contracting, and school admissionswas viewed as an exception; the idea was to practice discrimination on behalf of historically marginalized groups in order to make amends for past wrongs.

In 2003, a pair of Supreme Court rulings involving the University of MichiganGratz v. Bollinger and the aforementioned Grutterupended that justification. In Gratz, the Court held 63 that Michigan’s undergraduate admissions program went too far in its consideration of race. The university used a point system, with 100 points guaranteeing admission; belonging to an underrepresented minority group was worth 20 points, while a perfect SAT score was worth only 12 points.

In Grutter, however, the Court permitted Michigan’s law school to consider race as one factor among many in admissions decisions, on the grounds that a racially diverse student body was a “compelling interest” of the state. While the decision preserved affirmative action in some formfor perhaps 25 years, per O’Connor’s time limitit forced higher education administrators to change their reasoning: Henceforth, they would have to defend race-based admissions as diversity enhancement programs.

Whether affirmative action actually promotes diversity is up for debate, of course. Schools that engage in racial gerrymandering may succeed in making their campuses more diverse in the most superficial sense without doing anything to improve intellectual, political, socioeconomic, or geographic diversity. No one in a position to defend Harvard’s admissions system ever argued that the school needed more conservative or libertarian representation; in practice, the institution’s position was simply that it needed fewer Asians.

At a time when the Supreme Court is often accused of being out of touch and counter-majoritarian, it’s worth mentioning that Students for Fair Admissions undeniably reflects the will of the people. Race-based admissions systems are opposed by 69 percent of poll respondents, including 58 percent of Democrats, according to The New York Times. Voters in California, a deep-blue state, banned affirmative action twicein 1996 and again, for good measure, in 2020. Faced with this reality, many defenders of affirmative action are trying to change the subject.

Rep. Alexandria Ocasio-Cortez (DN.Y.), for instance, complained that the Supreme Court had ignored a more serious example of unfairness in higher education. “If SCOTUS was serious about their ludicrous ‘colorblindness’ claims,” she wrote on Twitter, “they would have abolished legacy admissions, aka affirmative action for the privileged.” Other progressive Democrats, such as Reps. Cori Bush (DMo.) and Jamaal Bowman (DN.Y.), made similar observations.

It should go without saying, but the justices declined to adjudicate legacy admissions because this issue was not before them. That said, legislators do not need to wait for the Court; they can and should abolish the practice within public institutions. The widespread practice of granting preferential treatment to the scions of alumni is unfair and has no place at taxpayer-funded colleges and universities.

The fact that legacy admissions still exist is not a reason to maintain affirmative action; eliminating explicit racial discrimination is a noble goal in and of itself. But to any naysayers who disdain the Supreme Court’s ruling because they think legacy admissions should face the same fate: Your terms are acceptable.

Business

Reeves seeks outsider to run Britain’s banking watchdog

Published

4 hours ago

October 4, 2025

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Reeves seeks outsider to run Britain's banking watchdog

Rachel Reeves, the chancellor, is seeking a heavyweight outsider to run Britain’s main banking watchdog, with a senior Barclays executive expected to be among the top contenders for the job.

Sky News has learnt that the Treasury is to advertise the post of chief executive of the Prudential Regulation Authority (PRA), which oversees financial services firms such as banks and insurers, within days.

One source said the recruitment process could kick off as early as next week.

The process, which will run for several months, will lead to the appointment of a successor to Sam Woods, a long-serving official who has served two terms in the role.

This weekend, it emerged that Katharine Braddick, a former senior Treasury civil servant who joined Barclays in 2022, is expected to be among the applicants for the role.

Whitehall insiders said Ms Braddick would be a strong contender for the post if she decided to apply.

A former director-general, financial services at the Treasury, Ms Braddick has been Barclays’ group head of strategic policy and advisor to the bank’s chief executive for three-and-a-half years.

Prior to the Treasury, she worked at the Financial Services Authority and was heavily involved in political negotiations on financial services legislation relating to Brexit.

Barclays declined to comment on Ms Braddick’s behalf on Saturday.

In response to an enquiry from Sky News, a Treasury spokesperson said: “Growing the economy is the Chancellor’s number one mission.

“Every regulator has a part to play by regulating for growth not just risk.”

The chancellor is said to be keen to identify candidates from outside Britain’s existing regulatory set-up to head the PRA.

A small number of internal candidates is thought to include David Bailey, the Bank of England’s executive director for prudential policy.

Ms Reeves’s apparent desire for an outsider comes amid a wider push for Britain’s economic watchdogs to remove red tape and reorient themselves towards growth-focused policies.

Earlier this year, Nikhil Rathi, chief executive of the Financial Conduct Authority, was appointed to a second term in charge following intensive discussions about the body’s five-year strategy.

Since then, both the FCA and PRA have removed rules relating to diversity and inclusion in the financial sector, while the former abandoned a plan to ‘name and shame’ companies which were the subject of enforcement investigations.

The Payment Systems Regulator (PSR) was abolished earlier this year as part of the government’s drive to reduce unnecessary regulation.

The search for the next PRA boss will get underway less than two months before the chancellor delivers an autumn Budget in which she is expected to have to raise tens of billions of pounds through additional tax rises.

Mr Woods’ next move will be closely watched in the City.

He has been seen as a potential candidate to succeed Andrew Bailey when the Bank of England governor’s term runs out in 2028, although it is unclear whether he covets the job.

As CEO of the PRA, Mr Woods is also a deputy governor of the Bank of England, a member of the Bank’s Court of Directors, and a director of the FCA.

The chancellor has shown a willingness to recruit from outside the Treasury, appointing Bank of America investment banking veteran Jim O’Neil as second permanent secretary to the Treasury earlier this year.

Mr O’Neil had also served as the head of UK Financial Investments, the agency set up to manage taxpayers’ stakes in Britain’s bailed-out banks.

Politics

Kemi Badenoch says Tories will quit ECHR if they win next election

Published

6 hours ago

October 4, 2025

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Kemi Badenoch says Tories will quit ECHR if they win next election

The Conservative Party will leave a key human rights treaty if it wins the election, its leader Kemi Badenoch has said.

Ms Badenoch announced the policy to leave the European Convention on Human Rights (ECHR) ahead of the Conservative Party’s conference next week.

Despite many Tory MPs having expressed displeasure with the treaty, and the court that upholds treaty rights in recent years, it had not been party policy for the UK to exit it.

The move follows a review on the impact of the UK’s ECHR membership conducted by shadow attorney general Baron Wolfson.

Lord Wolfson’s nearly 200-page report said the ECHR had impacted government policy in numerous areas.

The report said this includes limiting government’s ability to address immigration issues, potentially hampering restrictions on climate change policy, and impacting government ability to prioritise British citizens for social housing and public services.

But leaving the ECHR would “not be a panacea to all the issues that have arisen in recent years”, Lord Wolfson said.

It comes after the Reform Party in August said they would take the UK out of the ECHR if elected.

The Conservatives have increasingly come under threat from Reform and are being trailed in the polls by them.

What is the ECHR?

The ECHR was established in the 1950s, drafted in the aftermath of the Second World War and the Holocaust, to protect people from serious human rights violations, with Sir Winston Churchill as a driving force.

It’s 18 sections guarantee rights such as the right to life, the prohibition of torture, the right to a fair trial, the right to private and family life and the right to freedom of expression.

It has been used to halt the deportation of migrants in 13 out of 29 UK cases since 1980.

A political issue

Leaving the ECHR would breach the 1998 Good Friday Agreement, the peace settlement deal between the British and Irish governments on how Northern Ireland should be governed.

Labour has in recent days said it was considering how Article 3, the prohibition on torture, and Article 8,
the right to respect for private and family life, are interpreted. The sections have been used to halt deportation attempts.

The Liberal Democrats and Greens are in favour of the ECHR.

A general election is not expected until 2029.

US

Trump tells Israel ‘stop bombing Gaza’ – as Hamas agrees to release Israeli hostages, and to parts of peace deal

Published

6 hours ago

October 4, 2025

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Hamas agrees to release all remaining Israeli hostages - but seeks further talks on rest of Trump's peace deal

Donald Trump has said Hamas is ready for a “lasting peace” after the Palestinian militants agreed to release all remaining hostages, as he called on Israel to stop bombing Gaza.

The US leader was responding to a statement by Hamas on Friday in which the group committed to returning all remaining hostages in Gaza, dead and alive.

Hamas also said it wants to engage in negotiations to discuss further details of the president’s peace plan, including handing over “administration of the enclave to a Palestinian body of independent technocrats”.

However, other aspects of the 20-point document, it warned, would require further consultation among Palestinians.

The Hamas statement came after Mr Trump warned he would unleash “all hell” if they did not respond to his peace plan, announced earlier this week, by Sunday.

Following the group’s response, the president said there was now a real chance of peace.

“I believe they are ready for a lasting PEACE,” Mr Trump posted on Truth Social. “Israel must immediately stop the bombing of Gaza, so that we can get the Hostages out safely and quickly!

“Right now, it’s far too dangerous to do that. We are already in discussions on details to be worked out. This is not about Gaza alone, this is about long sought PEACE in the Middle East.”

In a video later posted on his social media platform, Mr Trump called it a “very special day” and said the end of the war was “very close”.

Prime Minister Benjamin Netanyahu said Israel was prepared for the implementation of the “first stage” of Mr Trump’s plan, apparently in reference to the release of hostages.

Moshe Emilio Lavi, brother-in-law of Israeli hostage Omri Miran, told Sky News he “can’t wait” to see his family reunited.

“We’ve received necessary guarantees from President Trump and the wider international community and now we have to keep pressuring Hamas to ensure that they abide by the Trump framework, that they disarm and release all the hostages within the 72 hours the framework outlines.

“There should be no buts and no delays, there should be only a yes to President Trump’s vision to end the conflict and bring home all the remaining hostages.”

Starmer calls for ‘agreement without delay’

Sir Keir Starmer said Hamas’s partial acceptance of the peace plan was a “significant step forwards” and called for an “agreement without delay”.

The prime minister said Mr Trump’s efforts “have brought us closer to peace than ever before” and added: “There is now an opportunity to end the fighting, for the hostages to return home, and for humanitarian aid to reach those who so desperately need it.

“We call on all sides to implement the agreement without delay.”

He went on to say the UK was ready to support further negotiations and work “towards sustainable peace for Israelis and Palestinians alike”.

French President Emmanuel Macron said “the release of all hostages and a ceasefire in Gaza are within reach”, while a spokesperson for UN Secretary General Antonio Guterres urged “all parties to seize the opportunity”.

Hamas agrees to release hostages

The breakthrough came just hours after Mr Trump had set the Sunday deadline to respond to his proposals, backed by the Arab nations.

The US president and the Israeli prime minister unveiled the peace plan at the White House on Monday.

Israel agreed to the terms, which include an immediate ceasefire; the release of all hostages; Hamas disarming; a guarantee no one will be forced to leave Gaza and a governing “peace panel” including Sir Tony Blair.

And on Friday, a statement from Hamas confirmed “its approval to release all prisoners of the occupation – whether alive or the remains of the deceased – according to the exchange framework included in President Trump’s proposal”.

Israel estimates 48 hostages remain in Gaza, 20 of whom are alive.

Hamas official says group will not disarm ‘before Israeli occupation ends’

The group also said it was ready to engage in negotiations through mediators and it appreciated “Arab, Islamic and international efforts, as well as the efforts of US President Donald Trump”.

But, Hamas official Mousa Abu Marzouk told Al Jazeera news the group would not disarm “before the Israeli occupation ends”.

Hamas acceptance – but with major caveats

By Celine Alkhaldi, Middle East producer

Hamas has issued a carefully worded response to Donald Trump’s Gaza proposal.

The group welcomed international efforts to end the fighting, agreed in principle to the release of all Israeli hostages, and said it is prepared to begin negotiations on the details of an agreement.

It also renewed its commitment to handing over administration of Gaza to a committee of Palestinian technocrats formed by national consensus and backed by Arab and Islamic states.

That position has been consistent for months and was not part of Mr Trump’s plan.

On wider questions, Hamas said decisions must be taken within a comprehensive Palestinian framework, leaving the most sensitive issues for future discussion.

The statement appears to accept parts of Mr Trump’s proposal, but in some areas it does not match its terms.

Hamas made no mention of disarmament, avoided any pledge to withdraw permanently from governing, and linked any hostage deal to a complete Israeli withdrawal.

Taken together, the response shows a willingness to engage on humanitarian and political steps already familiar from past proposals, while deferring the core disputes to a broader Palestinian process.

Hamas does not know where all hostages are

Sky News Middle East correspondent Adam Parsons said the “most important part” of the Hamas response was that it showed a willingness to do a deal.

“The peace plan could have died – Hamas could have rejected it – but it is still alive.”

He said there were still “huge obstacles” which would prevent outright acceptance though.

In spite of a pledge to release hostages, he said Hamas did not entirely know where all of them were – some were even being held by other groups.

Hamas’s support for a new government for Palestine was positive, he said, but the specification in the Hamas response that it should be purely Palestinian and not, as Mr Trump had proposed, a “panel” that included external representatives, would be problematic.