What SCOTUS’s Ruling on Affirmative Action Means for Sex-Based Equality and the Equal Rights Amendment

The U.S. Supreme Court issued a landmark decision this term, striking down admissions policies at Harvard University and the University of North Carolina (UNC) that considered applicants’ race in order to maintain racially and ethnically diverse student bodies. The Court found that the 14th Amendment’s Equal Protection Clause prohibits consideration of applicants’ race and therefore the policies at Harvard and UNC violate the constitutional right to equal protection of the laws. 

The Supreme Court clearly and adamantly offered the following interpretation of the scope and meaning of the 14th Amendment’s Equal Protection Clause:

1. Schools may never factor in an applicant’s race (or by implication, sex) when making admissions decisions in order to achieve a diverse student body and educational community.

2. In Chief Justice Robert’s view, “[e]liminating racial discrimination means eliminating all of it.” Under this new constitutional order, UNC’s exclusion of Black students from admission prior to 1951 created the same constitutional problem as UNC taking students’ race into account as a factor in admissions in order to create a diverse student body.

3. Context, history, and purpose concerning a school’s justification for considering applicants’ race are now impermissible under this Equal Protection analysis. 

4. The majority and dissenters in this case have radically different ideas of what it means for “race to play a role in the application process.” The majority treats “race” in individualized terms, not in terms that consider structural forms of advantage or disadvantage. For instance, Chief Justice Roberts found that for UNC and Harvard, “the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin.” This approach to “considering race” focuses on the individual attributes of the applicant, including their race/skin color. Yet for the dissenters, race “playing a role in the application process” requires consideration of the structural disadvantages that have impeded people of color from accessing equal educational opportunity in the U.S. They are less concerned with race as an individual attribute, and more with how race and racism structure American society. 

The approach embraced by the majority is typically described as “formal equality” and the dissenters’ approach as “substantive equality.” The former focuses on inputs relating to individuals (such as an applicant’s race) and the latter is concerned with structures of inequality (for example, in what ways have race-based policies in primary and secondary education denied equal access to educational systems to students on the basis of their race.)

1. The majority and Justice Thomas refer to the 14th Amendment’s Equal Protection Clause as part of a “Second Founding” – a notion that the Reconstruction (13th, 14th, and 15th) Amendments to the Constitution marked a kind of rebirth of the nation on more inclusive, egalitarian terms, especially concerning the disestablishment of slavery and the recognition of full citizenship rights for Black people. However, the majority and Justice Thomas refer to that “Second Founding” as a way to envision a “color-blind” society, where any discrimination, whether harmful or remedial, is prohibited under the Equal Protection Clause. Their "color-blind” reading of the concept of Equal Protection, one that prohibits affirmative action or “positive discrimination,” misreads the history and tradition of the concept of equality inaugurated by the “Second Founding.”  

What are the implications of the affirmative action case for sex-based equality and the ERA?

The Supreme Court’s ruling in SFA v. Harvard provides yet another compelling example of why it is important to finally ratify the Equal Rights Amendment (ERA) as the 28th Amendment to the U.S. Constitution. This recent case solidifies a decades-long trend of the Supreme Court interpreting the Equal Protection Clause as a measure that most often protects the rights of men and white people, preserving a structurally unequal status quo in the U.S. As Jamelle Bouie wrote today in the New York Times, “a color-blind Constitution could do as much or more to preserve a hierarchical and unequal society as laws designed for that purpose.”

The ERA, which states that “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex” would add explicit sex equality protections to the Constitution. Having passed both houses of Congress by a 2/3 majority and having been ratified by 3/4 of the state legislatures, the ERA has satisfied all of the constitutional requirements to be a part of the Constitution, yet opponents have raised legal objections to its final ratification. The ERA Project has prepared an FAQ on those objections.)

Resolving those objections and finally ratifying the ERA could be understood as the launch of a “Third Founding,” or a “constitutional moment” that signals a new approach to constitutional equality and citizenship—not only sex-based equality but equality more generally. The ERA should be understood to update and enhance our constitutional conception of equality beyond the 19th-century version we now have. A freestanding, new source of equality rights with no necessary relationship to the 14th Amendment’s Equal Protection Clause could provide more substantive equality protections beyond the meager protections found in the 14th Amendment.  

The ERA Project’s policy paper, The Sex Equality Gap, explains in greater detail the limits of the Supreme Court’s embrace of formal equality, and how the ERA would bring a 21st-century notion of equality into our Constitution as a “Third Founding.”