Professor George Addresses 6/29/23 Supreme Court Decision on Affirmative Action

June 29, 2023

The Supreme Court of the United States has handed down its decision in the cases of Students for Fair Admissions, Inc. v. President and Fellow of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina. These cases concern a matter on which reasonable people of goodwill are not of one mind: For the sake of increasing racial and ethnic diversity, may state colleges and universities, or colleges and universities who benefit from state or federal governmental funding or qualify as public accommodations under civil rights laws, take race or ethnicity as such into consideration in making admissions and (by implication) hiring decisions? In previous cases, the Supreme Court, by narrow majorities, permitted race to be taken into account as one factor among others in a holistic evaluation of candidates. The Court has now reversed those rulings, holding that the constitutional guarantee of the equal protection of the laws forbids universities from counting a candidate’s race or ethnicity for or against him or her in making admissions and hiring decisions.

This development in our constitutional law is obviously of great significance. While Americans by and large agree on the importance of equality, as a constitutional commitment, and diversity, as something desirable in the classroom and workplace, we are divided on the precise meanings of equality and diversity and on certain questions about how properly to achieve equality and diversity. In my opinion, this is not a debate between good people and bad people. It’s a debate among good people who, with the best will in the world, see things differently.

Someone might ask: As an academic unit of Princeton University devoted to the study of American ideals and institutions, where does the James Madison Program stand on the matter? The answer is that the James Madison Program takes no stand. Individual scholars and students associated with the Madison Program, including its Director (namely, me), have views and take stands on the question of affirmative action or racial preferences in admissions and hiring, but the Program itself does not. We provide, and I hope that Princeton University and all of its other units provide, in the words of President Christopher Eisgruber, “an impartial forum for vigorous, high-quality discussion, debate, scholarship, and teaching.” “Impartial” means impartial. All are welcome in the Madison Program irrespective of one’s beliefs about race-conscious admissions and hiring or other issues that divide honorable Americans. There are no orthodoxies and no heresies. What unites us is not ideology or politics, but a shared desire to explore constitutional and other fundamental questions concerning our civic order in a truth-seeking spirit.

There are serious arguments for and against the competing positions on the constitutionality of taking race as such into account in admissions and hiring for the sake of achieving certain sorts of diversity. I encourage every student, faculty colleague, and friend who is reading this message to fully acquaint himself or herself with these arguments. Wherever you come down, please try to understand why it is that there are well-informed, reasonable people of goodwill who disagree with you. Please don’t let this decision be yet another occasion for people to demonize those of their fellow citizens whose opinions do not square with their own—whatever their own may be. For starters, please take the trouble to read the opinions in the Harvard and North Carolina decisions—not only the opinion for the Court written by Chief Justice Roberts, but also the concurring opinions by Justices Thomas, Gorsuch, and Kavanaugh, and the dissenting opinions by Justices Sotomayor and Jackson. These are serious, thoughtful people, making serious, thoughtful arguments. What’s more, taken together, the opinions model vigorous—indeed passionate—yet civil and respectful disagreement. Heaven knows that our poor struggling experiment in republican government and ordered liberty needs more of that today.

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Robert P. George
McCormick Professor of Jurisprudence
Director of the James Madison Program in American Ideals and Institutions
Princeton University