Article

Commitment to Equal Opportunity?: Students for Fair Admissions v. Harvard and the Ends-Oriented Constitution

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Abstract

In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College
(2023), the United States Supreme Court held that the Equal Protection Clause of
the Fourteenth Amendment prohibits the use of affirmative action admissions
programs in higher education. Underlying the Court’s decision was a commitment
to negative constitutionalism, which seeks to restrain the power of government to
protect individuals from government. More specifically, the Court adhered to
colorblind constitutionalism, perceiving any racial classifications in the law, even
those designed to ameliorate entrenched racial disparities like affirmative action,
as unconstitutional. However, the Constitution’s logic is positive — that is, it
empowers the government to pursue public goods to bring about and maintain a
desirable social state of affairs. One aspect of this desirable social state of affairs
is an equal-opportunity society that “lifts artificial weights from all shoulders,”
as President Abraham Lincoln contended. Thus, the Court erred in Students for
Fair Admissions by proscribing affirmative action in higher education, for it is a
reasonable means to achieve that end. This decision officially terminated a
constitutional commitment to an equal-opportunity society and epitomized the
Court’s fundamental misconception of the Constitution’s normative character.

Keywords: 14th Amendment, Affirmative Action, Higher Education