UPDATED: 29 JUN 2023 12:57 PM EST
The Supreme Court on Thursday dealt a major blow to affirmative action in higher education, striking down race-conscious admissions programs at Harvard and the University of North Carolina.
In a ruling divided along ideological lines, the high court's six-justice conservative majority found that the universities discriminated against white and Asian American applicants by using race-conscious policies that benefited applicants from underrepresented backgrounds.
Chief Justice John Roberts wrote the majority opinion. The three liberal justices dissented.
“Eliminating racial discrimination means eliminating all of it,” Roberts wrote.
The decision undercuts long-standing admissions policies at elite colleges and universities that use race as one of many factors in evaluating applicants. Those policies relied on prior Supreme Court cases that permitted the use of race as part of a “holistic” process meant to promote a diverse student body. But Thursday's ruling appeared to find most of those programs unlawful.
Education and civil rights groups say that ending the use of race-conscious admissions policies will exacerbate inequality for years to come. Many pointed to the public institutions that have struggled to enroll diverse freshman classes in nine states that have already banned the practice.
In decisions going back more than 40 years, the Supreme Court had upheld the limited use of affirmative action to promote diversity. While Roberts stopped short of explicitly overturning those precedents Thursday, his majority opinion appeared to render them dead letters in practice. In fact, Justice Clarence Thomas (who joined Roberts' opinion) and Justice Sonia Sotomayor (who dissented) both wrote in separate opinions that Thursday's decision was overturning the prior cases without officially saying so.
Roberts, for his part, wrote that the universities had committed unlawful discrimination by categorizing students by race and giving preferences to Black and Hispanic applicants.
“The Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause,” Roberts wrote, referring to the provision of the 14th Amendment that bars the government from discriminating on the basis of race. “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 end points. We have never permitted admissions programs to work in that way, and we will not do so today.”
The chief justice stressed in his ruling, however, that the court was not entirely prohibiting schools from taking account of applicants’ experiences related to race as long as such factors aren’t a subterfuge for explicit consideration of race.
“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,” Roberts wrote. “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.”
Justices Sonia Sotomayor and Ketanji Brown Jackson each wrote separate dissents joined by the court’s other Democratic appointee, Elena Kagan. (Jackson, President Joe Biden’s only appointee to the high court and its newest member, recused herself from the Harvard case because she served for years on one of Harvard’s governing boards, but she participated in the North Carolina case.)
“Today, this Court stands in the way and rolls back decades of precedent and momentous progress,” Sotomayor wrote in her 69-page dissent. “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.”
While Roberts never explicitly wrote that the court was foreclosing the use of race in admissions, Sotomayor asserted that her colleagues in the majority had done just that.
“By ending race-conscious college admissions, this Court closes the door of opportunity that the Court’s precedents helped open to young students of every race,” she wrote.
Sotomayor read portions of her dissent aloud from the bench — an unusual step that signals impassioned opposition. Calling the decision "profoundly wrong," she said from the bench that the court had announced “a requirement designed to ensure all race-conscious plans fail.”
"Despite the court, we shall overcome," she said as she concluded her remarks.
Thomas, who sits next to Sotomayor on the bench and has fiercely opposed affirmative action for decades, leaned back in his chair, looking at the ceiling as Sotomayor spoke. Meanwhile, at the other end of the bench, Jackson looked sternly forward toward the public gallery, not turning an eye to the other justices.
Jackson did not read her dissent from the bench. But her written opinion offered a full-throated defense of race-conscious practices in college admissions as a way to remedy past and ongoing discrimination.
“Our country has never been colorblind,” wrote Jackson, the first Black woman to serve on the high court. “The best that can be said of the majority’s perspective is that it proceeds (ostrich-like) from the hope that preventing consideration of race will end racism. But if that is its motivation, the majority proceeds in vain.”
“If the colleges of this country are required to ignore a thing that matters, it will not just go away. It will take longer for racism to leave us. And, ultimately, ignoring race just makes it matter more,” Jackson added.
Thomas, the longest-serving justice and the second Black American to sit on the high court, penned a solo concurring opinion that ran 18 pages longer than Roberts’ 40-page majority opinion. Thomas also took the unusual step of reading portions of his concurrence aloud.
Thomas said that the majority opinion, which he joined, effectively overruled the court’s 2003 decision in Grutter v. Bollinger, which upheld affirmative action but said it should wind down within 25 years.
“The Court’s opinion rightly makes clear that Grutter is, for all intents and purposes, overruled,” Thomas wrote. “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. Those policies fly in the face of our colorblind Constitution and our Nation’s equality ideal. In short, they are plainly — and boldly — unconstitutional.”
The group that challenged the Harvard and UNC policies is known as Students for Fair Admissions. The group, led by longtime affirmative action opponent Edward Blum, lauded the decision, saying that it “marks the beginning of the restoration of the colorblind legal covenant that binds together our multi-racial, multi-ethnic nation.”
Blum added that his group’s lawyers have been “closely monitoring potential changes in admissions procedures” and threatened to “initiate litigation should universities defiantly flout this clear ruling and the dictates of Title VI and the Equal Protection Clause.”
He also called on elite universities to eliminate their preferences for admitting children of alumni, faculty and staff, athletes and donors.
Harvard said Thursday it "certainly" would comply with the court's decision while reaffirming its commitment to building a "a student body whose members reflect, and have lived, multiple facets of human experience."
"In the weeks and months ahead, drawing on the talent and expertise of our Harvard community, we will determine how to preserve, consistent with the Court’s new precedent, our essential values," the university said.
