What the Supreme Court Rejection of Affirmative Action Means

The U.S. Supreme Court declared Thursday that the admissions systems used by Harvard University and the University of North Carolina at Chapel Hill illegally violate the Equal Protection Clause of the 14th Amendment.

“Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful endpoints. We have never permitted admissions programs to work in that way, and we will not do so today,” said the decision, by Chief Justice John G. Roberts Jr.

“At the same time, as all parties agree, 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,” the decision added. “But despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today.”

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The decision argued that “our cases have stressed that an individual’s race may never be used against him in the admissions process. Here, however, the First Circuit found that Harvard’s consideration of race has led to an 11.1 percent decrease in the number of Asian-Americans admitted to Harvard. And the District Court observed that Harvard’s ‘policy of considering applicants’ race … overall results in fewer Asian American and white students being admitted.’ ”

Chief Justice Roberts noted that Harvard and UNC said that “an individual’s race is never a negative factor in their admissions programs, but that assertion cannot withstand scrutiny. Harvard, for example, draws an analogy between race and other factors it considers in admission. ‘While admissions officers may give a preference to applicants likely to excel in the Harvard-Radcliffe Orchestra,’ Harvard explains, ‘that does not mean it is a “negative” not to excel at a musical instrument.’ ”

He added, “But on Harvard’s logic, while it gives preferences to applicants with high grades and test scores, ‘that does not mean it is a negative’ to be a student with lower grades and lower test scores. This understanding of the admissions process is hard to take seriously. College admissions are zero-sum. A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.”

The decision was joined by Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett.

Justice Sonia Sotomayor wrote the dissent and was joined by Justices Elena Kagan and Ketanji Brown Jackson, although Jackson did not participate in the Harvard case. She recused herself because of her service on a Harvard board, prior to joining the Supreme Court, that discussed the case.

In her dissent, Sotomayor said, “Today, this court stands in the way and rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits. In so holding, the court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.”

She added, “The court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society. Because the court’s opinion is not grounded in law or fact and contravenes the vision of equality embodied in the Fourteenth Amendment, I dissent.”

The decision is expected to impact just about every college that takes race into consideration.

It does, however, exempt the military academies. As a footnote in the opinion says, “No military academy is a party to these cases … and none of the courts below addressed the propriety of race-based admissions systems in that context. This opinion also does not address the issue, in light of the potentially distinct interests that military academies may present.”

Justice Jackson replied to that footnote in a dissent. “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).”

The decision, the concurring opinions and the dissents total 237 pages.

Edward Blum, the founder and president of Students for Fair Admissions, which brought the suits, said in a statement, “The opinion issued today by the United States Supreme Court marks the beginning of the restoration of the colorblind legal covenant that binds together our multi-racial, multi-ethnic nation. 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. These discriminatory admission practices undermined the integrity of our country’s civil rights laws.”

He added, “Ending racial preferences in college admissions is an outcome that the vast majority of all races and ethnicities will celebrate. A university doesn’t have real diversity when it simply assembles students who look different but come from similar backgrounds and act, talk, and think alike.”

Many colleges expressed disappointment with the decision.

Chancellor Kevin M. Guskiewicz of UNC Chapel Hill said, “Carolina remains firmly committed to bringing together talented students with different perspectives and life experiences and continues to make an affordable, high-quality education accessible to the people of North Carolina and beyond. While not the outcome we hoped for, we will carefully review the Supreme Court’s decision and take any steps necessary to comply with the law.”

A group of Harvard administrators, including Lawrence S. Bacow, the president, and Claudine Gay, who is soon to succeed him, wrote,

• “Because the teaching, learning, research, and creativity that bring progress and change require debate and disagreement, diversity and difference are essential to academic excellence.
• “To prepare leaders for a complex world, Harvard must admit and educate a student body whose members reflect, and have lived, multiple facets of human experience. No part of what makes us who we are could ever be irrelevant.
• “Harvard must always be a place of opportunity, a place whose doors remain open to those to whom they had long been closed, a place where many will have the chance to live dreams their parents or grandparents could not have dreamed.”

Biden’s Strategy

President Biden, who has defended the positions of Harvard and UNC on affirmative action, said in a statement, “Today, the Supreme Court upended decades of precedent that enabled America’s colleges and universities to build vibrant diverse environments where students are prepared to lead and learn from one another.”

Biden said it was time to “seize the opportunity to expand access to educational opportunity for all. Our nation is stronger when our colleges and universities reflect the vast and rich diversity of our people. But while talent, creativity, and hard work are everywhere across this country, equal opportunity is not.”

Specifically, Biden said colleges should “give serious consideration to the adversities students have overcome, including the financial means of a student or their family; where a student grew up and went to high school; and personal experiences of hardship or discrimination, including racial discrimination, that a student may have faced.”

Views in Academe

In academe, the views of college leaders and associations about the decision were almost uniformly negative.

Macalester College president Suzanne Rivera recently wrote an op-ed in The Star Tribune that noted the challenges she faced in going to college. “As someone raised in an immigrant home, who qualified for free lunch and went to college with the support of a Pell Grant, I am keenly aware that my path to college was made possible only because I was offered extraordinary educational opportunities,” she said. “When my youngest sibling started kindergarten, our single mother joined the workforce without a college degree, taking a job as a switchboard operator at a private high school. To our good fortune, the school allowed employees’ children to attend for free. That experience unleashed my potential, preparing me for the intellectual rigors of an Ivy League university.”

On Thursday, she vowed to do “everything possible” to keep Macalester’s doors open to all. “While the Supreme Court’s decision to restrict the consideration of race and ethnicity in college admissions is not surprising, it is very disappointing,” she said.

David Harris, president of Union College, in New York, said he, too, was disappointed by the decision. The only thing he found encouraging in the decision was Justice Roberts’s statement that applicants could still talk about their race or racism in the application process. But how to use that remains uncertain, he said.

An African American president, he said, “I woke up today thinking, ‘Today is the day that affirmative action ends.’” He said this was despite all the good it has done.

“I don’t know that we are very good at having rational discussions about race,” he said.

Ted Mitchell, president of the American Council on Education, issued a statement that said, “Let us be clear: diversity matters in an educational environment. This is not an opinion, it is a fact, one not altered by today’s ruling, and one that impacts our entire society. As briefs from major corporations and high-ranking former military officers stressed, diversity in the classroom leads directly to a more productive workforce and cohesive armed forces.”

Angel Pérez, the CEO of the National Association for College Admission Counseling, said he was “deeply disappointed” by the decision. He said he didn’t think the justices who endorsed the majority view understood how admissions works.

NACAC is doing “a deep dive” on the ruling and will try to help its members preserve diversity. But he said colleges should prepare to see their numbers of Black and Latino students decrease next year.

He noted that the University of California system was frequently talked about by proponents of ending affirmative action. The UC system ended affirmative action 27 years ago and has worked very hard since then to recruit a diverse student body.

But Perez noted that UC lost many, many Black and Latino students when the system first eliminated affirmative action. And it has spent huge sums of money since. In other states, he said, “where is the political will” to promote diversity?

Reversals by the Court

The cases represented a chance for opponents of affirmative action to reverse not only the Harvard and UNC decisions but many others that have upheld the use of affirmative action since the Supreme Court ruled in the Bakke case in 1978.

The composition of the Supreme Court differs significantly from the last time it upheld the use of affirmative action in college admissions, in 2016, in a case involving the University of Texas at Austin.

That decision was 4 to 3 because of the death of Justice Antonin Scalia, an opponent of affirmative action, and the recusal of Kagan, who worked on the case as solicitor general before she joined the Supreme Court. The author of the decision, Justice Anthony M. Kennedy, has since retired from the Supreme Court.

The three justices who were in the minority in that case—Chief Justice Roberts, Justice Alito and Justice Thomas—remain on the court, and they have been joined by three more conservative justices.

The Harvard case decisions—in 2019, by Judge Allison Burroughs, and in 2020 by the U.S. Court of Appeals for the First Circuit—came in a much-watched case brought by a long-standing critic of affirmative action, Students for Fair Admissions, on behalf of a group of Asian American plaintiffs.

“For purposes of this case, at least for now, ensuring diversity at Harvard relies, in part, on race conscious admissions,” Burroughs wrote in her conclusion. “Harvard’s admission program passes constitutional muster in that it satisfies the dictates of strict scrutiny. The students who are admitted to Harvard and choose to attend will live and learn surrounded by all sorts of people, with all sorts of experiences, beliefs and talents. They will have the opportunity to know and understand one another beyond race, as whole individuals with unique histories and experiences.

“It is this, at Harvard and elsewhere that will move us, one day, to the point where we see that race is a fact, but not the defining fact and not the fact that tells us what is important, but we are not there yet. Until we are, race conscious admissions programs that survive strict scrutiny will have an important place in society and help ensure that colleges and universities can offer a diverse atmosphere that fosters learning, improves scholarship, and encourages mutual respect and understanding.”

The appeals court said, “The issue before us is whether Harvard’s limited use of race in its admissions process in order to achieve diversity in the period in question is consistent with the requirements of Supreme Court precedent. There was no error.”

Students for Fair Admissions in February asked the Supreme Court to hear the case. The brief asked the Supreme Court to repeal its 2003 decision in Grutter v. Bollinger, which upheld the use of affirmative action in admissions by the law school at the University of Michigan. “Although Grutter praised the ‘educational benefits’ of student body diversity writ large, its assumption that a university can predict, based solely on race, an applicant’s ‘views’ or ‘experience[s]’ is little more than racial stereotyping,” SFFA wrote.

With regard to Harvard, the Students for Fair Admissions brief said, “At Harvard, race is not a ‘plus’ that is always ‘beneficial’; it’s a minus for Asian Americans. At Harvard, race is not a ‘factor of a factor of a factor’; it is an anvil on the scale that dominates the entire process. At Harvard, race is not a ‘temporary’ evil to be repealed as soon as possible; it is a key aspect of identity that Harvard will use until a court makes it stop.”

The UNC Case

UNC won its case a year ago when Judge Loretta C. Biggs found that “at trial, UNC defendants produced substantial, credible, and largely uncontested evidence that it has made the deliberate decision to pursue the educational benefits that flow from student body diversity; has offered a principled, reasoned explanation for this decision; and that the benefits the university seeks to achieve are sufficiently measurable to permit judicial scrutiny.”

Normally, the plaintiffs in the case, Students for Fair Admissions, would appeal to the U.S. Court of the Appeals for the Fourth Circuit. But SFFA said that, given the similarities to the Harvard case, the Supreme Court should combine the two cases.