Supreme Court Rejects Race-Based Affirmative Action in College Admissions

The Washington Post / Robert Barnes

16:34 JST, June 30, 2023

WASHINGTON – The Supreme Court on Thursday held that race-conscious admissions programs at Harvard and the University of North Carolina violate the Constitution’s guarantee of equal protection, a historic ruling that rolls back decades of precedent and will force a dramatic change in how the nation’s private and public universities select their students.

The votes split along ideological grounds, with Chief Justice John G. Roberts Jr. writing for the conservative members in the majority, and the liberals dissenting. While the ruling examined Harvard and UNC, its impact will be felt across the nation.

Elite universities have contended that without considering race as one factor in admissions, their student bodies will contain more Whites and Asian Americans, and fewer Blacks and Hispanics.

But, “the student must be treated based on his or her experiences as an individual – not on the basis of race,” Roberts wrote, joined by Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett. “Many universities have for too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice.”

Justice Sonia Sotomayor, the court’s first Latina and a proponent of affirmative action, read parts of her opinion from the bench in a show of profound disagreement.

“The devastating impact of this decision cannot be overstated,” she wrote in her dissent, which was joined by fellow liberal Justices Elena Kagan and Ketanji Brown Jackson, who is the first Black female on the high court. “The majority’s vision of race neutrality will entrench racial segregation in higher education because racial inequality will persist so long as it is ignored.”

It was the second time in as many terms that the court’s dominant conservative majority has abandoned decades-old, landmark rulings. The votes were 6-3 in the UNC case and 6-2 in the Harvard case, with Jackson recusing herself because she served on a board at Harvard.

Last year, the justices ended the guarantee of abortion rights that the high court found nearly 50 years ago in Roe v. Wade.

In her dissent, Sotomayor made a pointed reference to the speed at which the conservative majority is advancing its jurisprudence on key societal issues.

“The six unelected members of today’s majority upend the status quo based on their policy preferences about what race in America should be like, but is not, and their preferences for a veneer of colorblindness in a society where race has always mattered and continues to matter in fact and in law,” she wrote.

The court first approved the limited use of affirmative action in college admissions decisions 45 years ago, in a decision that illustrated the justices’ delicate balancing of the Constitution’s guarantee of equal protection with society’s goal of remedying past discrimination and segregation. It settled on allowing some consideration of race because of the benefits of a diverse student body.

Since then, allowance of some racial considerations has been upheld in close cases. Roberts’s majority opinion did not specifically say the court was overturning the foundation of those rulings, the 2003 opinion known as Grutter v. Bollinger. But he said the majority in Grutter had envisioned its expiration in 25 years.

“Twenty years later, no end is in sight,” Roberts wrote.

University programs that take race into account must meet the court’s strictest constitutional scrutiny, “may never use race as a stereotype or negative, and – at some point – they must end,” Roberts wrote. “However well intentioned and implemented in good faith,” he continued, the programs at Harvard and UNC “fail each of these criteria.”

If Roberts was unwilling to declare Grutter was no longer good precedent, Thomas, a longtime opponent of affirmative action, was not.

“The Court’s opinion rightly makes clear that Grutter is, for all intents and purposes, overruled,” Thomas wrote. “And it sees the universities’ admissions policies for what they are: rudderless, race-based preferences designed to ensure a particular racial mix in their entering classes.”

While leaders of elite private and public institutions have said they fear a dramatic drop in diversity if they are prohibited from taking race into account, Roberts noted that those rules are already the norm in many places.

“Three out of every five American universities do not consider race in their admissions decisions,” he wrote. “And several States – including some of the most populous (California, Florida, and Michigan) – have prohibited race-based admissions outright.”

President Biden appeared before reporters Thursday afternoon to express his disagreement with the decision. He defended affirmative action as a necessary tool, saying it enables colleges to admit a more diverse group of students who meet their admissions criteria.

“Discrimination still exists in America,” Biden said, repeating the phrase two more times for emphasis. He said he was directing the Education Department to “analyze what practices” at colleges and universities “help build a more inclusive and diverse student body and what practices hold that back.”

Roberts said that “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” But Sotomayor derided that approach as putting “lipstick on a pig,” because of Roberts’s caveats that such benefits “must be tied to that student’s courage and determination” or “tied to that student’s unique ability to contribute to the university.”

Many college and university presidents had asked the court to allow the policies of Harvard and UNC, and lamented the ruling. Some said it signaled the end of an era of court deference to higher education.

“It’s saying to American universities, ‘We no longer trust you to handle race and ethnicity in ways that are consistent with the Constitution, even though we set up this system with you,'” said Lee Bollinger, the outgoing president of Columbia University, who was a party to the 2003 ruling when he was president of the University of Michigan. The effects, he said, “will be tragic – very, very serious.”

Elizabeth H. Bradley, president of Vassar College in New York, said she thinks colleges like hers will figure out how to maintain an inclusive environment. “It’s just so core to who we are,” Bradley said. “We will find a legal way in which that can be accomplished.”

But those at places where the consideration of race already is banned said maintaining diversity will be difficult.

“We know firsthand from our own data how a ban on affirmative action can really affect the diversity of especially your undergraduate populations,” said Santa J. Ono, the current president at Michigan. Still, he said Michigan has managed to find other methods to attract students from a variety of racial backgrounds. “It’s a lot of work. It takes a lot of resource and time, but with time it is possible.”

As recently as 2016, the court upheld an affirmative action program at the University of Texas, concluding for the third time that educational diversity justifies the consideration of race as one factor in admission decisions.

But Sotomayor is the only justice remaining on the court from that slim, 4-3 majority. At the time, conservative activist Edward Blum, who brought previous challenges to the practice, was already working on new lawsuits he could present to a rebuilt court.

On Thursday, he declared victory.

“The polarizing, stigmatizing and unfair jurisprudence that allowed colleges and universities to use a student’s race and ethnicity as a factor to admit or reject them has been overruled,” Blum said in a statement. “Ending racial preferences in college admissions is an outcome that the vast majority of all races and ethnicities will celebrate.”

The court’s foundational affirmative action case, Regents of the University of California v. Bakke, splintered the court and produced six opinions. The same was true Thursday.

Thomas, who for decades was in the minority as the court upheld versions of affirmative action policies, took the unusual step of reading from his concurring opinion immediately after Roberts read the majority’s decision.

He said he was writing to make the case for a “color-blind” Constitution, although he acknowledged being “painfully aware of the social and economic ravages which have befallen my race and all who suffer discrimination.”

In his concurring opinion, Thomas directly engaged with Jackson, one of the court’s most liberal members, and the only other Black justice. In her view, he wrote, “almost all of life’s outcomes may be unhesitatingly ascribed to race.”

Jackson’s dissent, which she did not read from the bench, responded to what she called Thomas’s “prolonged attack.”

“With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat,” Jackson wrote. “But deeming race irrelevant in law does not make it so in life.”

Kavanaugh, in his opinion, said ending racial preferences was truer to the court’s precedents than upholding their use.

“I respectfully part ways with my dissenting colleagues on the question of whether, under this Court’s precedents, race-based affirmative action in higher education may extend indefinitely into the future,” he wrote. “The dissents suggest that the answer is yes. But this Court’s precedents make clear that the answer is no.”

Jackson dismissed Grutter’s call for an end of the programs in 25 years as more of a rhetorical flourish. “Equality is an ongoing project in a society where racial inequality persists,” she wrote. “A temporal requirement that rests on the fantasy that racial inequality will end at a predictable hour is illogical and unworkable.”

And she had a retort for Roberts when he said there might be one place for continued considerations of race. In a footnote, the chief justice acknowledged that federal government’s interest in diversity recruitment at the nation’s military academies. He held out the possibility that an argument could be considered in a future case, “in light of the potentially distinct interests that military academies may present.”

Wrote Jackson: “The Court has come to rest on the bottom-line conclusion that racial diversity in higher education is only worth potentially preserving insofar as it might be needed to prepare Black Americans and other underrepresented minorities for success in the bunker, not the boardroom (a particularly awkward place to land, in light of the history the majority opts to ignore).”

In the North Carolina case that was decided Thursday, Blum’s group Students for Fair Admissions said the flagship university’s policies discriminated against White and Asian applicants by giving preference to Black, Hispanic and Native American ones.

The case against Harvard, also decided Thursday, accused the university of discriminating against Asian American students by employing subjective standards to limit the numbers accepted.

Thursday’s ruling came from the most diverse Supreme Court in history. Five of the nine justices had never cast a vote on affirmative action before this term, although some – notably Thomas and Sotomayor – have said the policy played a dramatic role in their lives. Those two justices came away from the experience with vividly different views.

Sotomayor has been the boldest defender of what she prefers to call “race-sensitive” admission policies and has referred to herself as the “perfect affirmative action child.” Without a boost, she has said, she probably never would have been transported from Bronx housing projects to the Ivy League. But she excelled as a top student at Princeton and Yale Law School once she got there.

Thomas, the second Black justice, countered that he felt affirmative action made his diploma from Yale Law practically worthless; he has been a fierce opponent of racial preferences in his three decades on the court. “Racial paternalism . . . can be as poisonous and pernicious as any other form of discrimination,” he has written.

Education Secretary Miguel Cardona said that in the coming months, the administration would provide standards that it thinks colleges should follow, convene a national summit in response to the decision and detail best practices in admissions policy.

“We have to make sure that we’re giving our students and our universities clarity and quickly communicating what this means and how they can continue to promote diversity,” Cardona said.

He said he hoped to send a message to historically underserved communities: “We see you, and we need you. Don’t let this . . . deter you from pursuing your educational potential. Our colleges and our country itself cannot thrive or compete in the 21st century without your talent, without your ingenuity, perseverance and ambition.”

The cases are Students for Fair Admissions v. University of North Carolina and Students for Fair Admissions v. President and Fellows of Harvard College.