The US supreme court, driven by its conservative supermajority, on Thursday ended race-conscious admissions at universities across the country, tossing out decades of precedent in American life and delivering a huge blow to the cause of greater student diversity on campuses.
The conservative justices concluded that admissions policies at Harvard University and the University of North Carolina violated the US constitution’s equal protection clause. This effectively prohibits the use of affirmative action policies in the US that acted as a tipping point, among many other admission factors, to raise the number of Black, Hispanic and other underrepresented minority students at selective US higher education colleges and universities.
The court concluded that Harvard and the University of North Carolina’s race-conscious admissions programs failed to abide by the narrow restrictions laid out by the court in previous cases, noting that university programs “must comply with strict scrutiny, may never use race as a stereotype or negative, and must – at some point – end”.
The six conservative-leaning justices on the nine-strong court prevailed over the three liberal leaning justices, with the newest member and first Black woman on the court, Ketanji Brown Jackson, issuing a stark dissent saying the ruling meant it would “take longer for racism to leave us”.
Joe Biden said he was considering executive action and will ask the Department of Education to look into ways to maintain diversity in university student bodies.
The US president said “this is not a normal court” of the bench, which has swung far to the right with the appointment of three rightwing justices during Donald Trump’s presidency, giving it a 6-3 conservative supermajority.
Speaking at the White House, Biden said: “Discrimination still exists in America. Today’s decision does not change that. It’s a simple fact.”
An analysis of student records by Students for Fair Admissions, a conservative activist group representing Asian American students in the lawsuit against Harvard, found that the institution, on average, rated Asian American applicants lower in personality and likability ratings than others. In oral arguments, Harvard’s attorney, Seth Waxman, argued that the university did not discriminate against Asian Americans, noting that the university weighed multiple factors in their admissions process.
The court found that the universities’ reasons for using race as a factor as a means of improving diversity “fail to articulate a meaningful connection between the means they employ and the goals they pursue”.
In a majority opinion, Chief Justice John Roberts wrote that despite the universities’ “commendable” goals, they fell short of constitutional standards. The “opaque” categories universities used to measure racial composition were “plainly over broad” and “undermines, instead of promotes, respondents’ goals,” Roberts wrote. Roberts added that Harvard’s program resulted in fewer Asian American students being admitted to the university, violating the Equal Protection Clause’s standard that “race may never be used as a “negative”.
“Yet by accepting race-based admissions programs in which some students may obtain preferences on the basis of race alone, respondents’ programs tolerate the very thing that Grutter foreswore: stereotyping,” Roberts wrote.
“Respondents’ assertion that race is never a negative factor in their admissions programs cannot withstand scrutiny,” Roberts wrote. “College admissions are zero-sum, and a benefit provided to some applicants but not to others necessarily advantages the former at the expense of the latter.”
The court’s decision against Harvard University and the University of North Carolina will limit the power of colleges and universities, particularly at selective institutions, to consider an applicant’s race as a factor in the admissions process. Past research shows that the end of race-consciousness in university admissions, which affects roughly a quarter of US colleges and universities, will result in declines in Black, Latino and Indigenous students admitted to highly selective universities. That may cause a cascading reshuffling of those students to other, less selective universities and is likely to make the elite institutions less diverse.
Highly selective private and state universities will now scramble to pursue race-neutral alternatives to improving diversity, a phenomenon that past research in states where affirmative action is already banned shows will not reach the same level of diversity as race-conscious admissions would.
The court noted that students could still discuss their race in their applications but that universities “wrongly concluded” that “the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned, but the color of their skin”.
The court argued that the universities’ underlying goal of using race-conscious admissions until “meaningful representation and meaningful diversity” is achieved on their campuses lacked a “logical endpoint” and resulted in unconstitutional “racial balancing”.
The court’s decision on Thursday tears against the fabric of college campuses, going against decades of precedent consistently upheld by the highest court in the land. In the 1960s, after John F Kennedy first ordered government contractors to “take affirmative action” to combat racial discrimination, colleges and universities developed policies to further diversify who enrolled.
The idea met its first challenge in 1978, in a case involving Allan Bakke, a white man who was denied admission to the University of California at Davis medical school. The court concluded that race could be factored in the admissions process but stopped colleges from setting racial quotas.
In 2003, in the case Grutter v Bollinger, the US supreme court ruled that higher education institutions can factor in race as a means of achieving diversity at colleges and universities because it represented a “compelling governmental interest”.
From that moment, though, the clock ticked for race-conscious admissions: Justice Sandra Day O’Connor wrote in a majority opinion that “25 years from now, the use of racial preferences will no longer be necessary.”
In the last decade, the conservative activist Edward Blum has led challenges seeking to curtail racial preferences in different aspects of American society, mostly recently in a 2013 case gutting the Voting Rights Act.
More than a decade later, in 2016, the US supreme court narrowly voted to uphold race-conscious admissions in a Blum-backed case by Abigail Fisher, a white woman denied admission to the University of Texas at Austin.
But since then the court has shifted further to the right, with a supermajority of six conservative justices following new appointments during the Trump administration.
“The entire point of the Equal Protection Clause is that treating someone differently because of their skin color is not like treating them differently because they are from a city or from a suburb, or because they play the violin poorly or well,” Roberts wrote.
Justice Ketanji Brown Jackson recused herself from the Harvard case but issued a blistering dissenting opinion in the UNC case, noting: “Although formal race-linked legal barriers are gone, race still matters to the lived experiences of all Americans in innumerable ways, and today’s ruling makes things worse, not better.
“If the colleges of this country are required to ignore a thing that matters, it will not just go away,” Jackson wrote. “It will take longer for racism to leave us. And, ultimately, ignoring race just makes it matter more.”
Justice Sonia Sotomayor also issued a dissent, warning that the ruling would “entrench segregation in higher education.”
The results of bans on affirmative action have been devastating and long-lasting, seeing the number of Black and Latino students plummet.
