Measurability of Objectives of Race-Conscious Admissions Programs
Posted: Sun Apr 06, 2025 8:50 am
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.
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 special lead 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.
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 special lead 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.