Law & Courts

Supreme Court Ends Affirmative Action in College Admissions in Decision Watched by K-12

By Mark Walsh — June 29, 2023 10 min read
People protest outside of the Supreme Court in Washington, Thursday, June 29, 2023. The Supreme Court on Thursday struck down affirmative action in college admissions, declaring race cannot be a factor and forcing institutions of higher education to look for new ways to achieve diverse student bodies.
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The U.S. Supreme Court on Thursday struck down affirmative action in college admissions, an expected but still earth-shaking change to the use of race that may be felt in K-12 schools and elsewhere in society.

“It has now been 20 years since Grutter and no end to race-based admissions is in sight,” Chief Justice John G. Roberts Jr. said from the bench, referring to the 2003 decision in Grutter v. Bollinger that had suggested affirmative action in admissions might no longer be necessary in 25 years.

The Harvard University and University of North Carolina “admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause,” Roberts said in his written opinion. “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.”

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Activists demonstrate as the Supreme Court hears oral arguments on a pair of cases that could decide the future of affirmative action in college admissions, in Washington, Oct. 31, 2022. As the Supreme Court decides the fate of affirmative action, most Americans say the court should allow consideration of race as part of the admissions process, yet few believe students' race should play a significant role in decisions.
Activists demonstrate as the U.S. Supreme Court hears oral arguments on a pair of cases that could decide the future of affirmative action in college admissions on Oct. 31, 2022. Most Americans say the court should allow consideration of race as part of the admissions process, yet few believe students' race should play a significant role in decisions.
J. Scott Applewhite/AP

The majority opinion was joined by Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh, and Amy Coney Barrett. In an unusual move, Thomas read part of his concurrence from the bench, saying racial preferences for one group necessarily harm members of other groups.

“Whatever their skin color, today’s youth simply are not responsible for instituting the segregation of the 20th century, and they do not shoulder the moral debts of their ancestors.”

Justice Sonia Sotomayor read from her dissent, which was joined by Justices Elena Kagan and Ketanji Brown Jackson, for more than 20 minutes.

“The court’s decision today is profoundly wrong,” she said. “Today, this court overrules decades of precedent and imposes a superficial rule of race blindness on the nation. The devastating impact of this decision cannot be overstated.”

Jackson, in a separate dissent joined by Sotomayor and Kagan (but not read from the bench), said, “Our country has never been colorblind.”

“Given the lengthy history of state-sponsored race-based preferences in America, to say that anyone is now victimized if a college considers whether that legacy of discrimination has unequally advantaged its applicants fails to acknowledge the well-documented intergenerational transmission of inequality that still plagues our citizenry,” Jackson said.

The vote was 6-3 in the UNC case, and 6-2 in the Harvard case—Jackson, who was a member of Harvard’s board of overseers until last year, recused herself from the Harvard case.

Admissions programs at two universities, but wider implications

The court ruled in Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina.

The cases involved challenges to how those institutions sometimes have taken race into account in the admissions process. K-12 educators have been paying close attention to the cases’ potential impact on a range of policies, including the use of race in admissions to selective magnet schools; race-based scholarships, counseling, and recruitment efforts; and broader efforts to promote racial and ethnic diversity and equity in elementary and secondary schools.

Students for Fair Admissions, an Arlington, Va.-based non-profit group that filed both challenges, argued that Harvard engages in illegal racial balancing and penalizes Asian-American applicants. Harvard argued that it only considers race as one factor among many in its admissions process as needed to pursue a racially and ethnically diverse student population. Its admissions program was upheld by a federal district court in 2019 and the U.S. Court of Appeals for the 1st Circuit, in Boston, in 2020.

In the North Carolina case, SFFA argued that the flagship state university failed to use workable race-neutral alternatives in its admissions program. The university argued that diversity in higher education remains an essential goal and that race-neutral options have proven unworkable. The university’s system was upheld by a federal district court in 2021. The Supreme Court decided to add the UNC case to its consideration of the Harvard case before a federal appeals court could rule in the former.

President Biden reacts to decision

President Joe Biden expressed his disappointment with the ruling from the Roosevelt Room of the White House, saying, “I strongly, strongly disagree with the court’s action.”

“Discrimination still exists in America,” he said, adding that he was directing the U.S. Department of Education to examine such practices as legacy admissions which have been widely perceived as giving a privilege to white students.

U.S. Secretary of Education Miguel Cardona issued a statement directed at students from minority groups, saying, “We see you and we need you. Do not let this ruling deter you from pursuing your educational potential. Our colleges and our country itself cannot thrive and compete in the 21st century without your talent, ingenuity, perseverance, and ambition. ”

Edward Blum, the founder of Students for Fair Admissions, praised the decision, saying in a statement that, “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.”

The Pacific Legal Foundation, which is pressing a case challenging the admissions policy of a selective magnet school in Virginia that the group argues impermissibly relies on race, said in a tweet: “With its Harvard/UNC decision, the Supreme Court ended the explicit use of race in admissions. But what about schools that use proxies for race? That’s the next step for equality & opportunity, and it’s what our Thomas Jefferson High School case is about.”

That case could reach the high court within a year or so.

Becky Pringle, the president of the National Education Association, which had filed a friend-of-the-court brief in support of the universities, said in a statement that “racism and discrimination are not just artifacts of American history but continue to persist in our society, including our schools, colleges, and universities. Affirmative action and programs like it expand higher education opportunities to those who have been historically denied a fair shot.”

The decisions in the two cases “by an out-of-touch and hyper-conservative Supreme Court are yet more evidence that the court is not working for all of us,” Pringle said.

Denise Forte, the president and CEO of The Education Trust, said in a statement, “Exposure to diverse perspectives and experiences enriches our educational environment, fosters critical thinking, and prepares students for the complexities of a global society. By disallowing the use of race as one factor of many in college admissions, the Supreme Court not only jeopardizes these benefits but undermines the civil society, intellectual growth, and educational outcomes of all students.”

Justin Driver, a Yale Law School professor and scholar of education law, called the decision “remarkably, astonishingly tone deaf.”

“Some conservatives may deem this a red-letter day, but history will record it as a black mark,” Driver said. “This decision is going to launch a thousand lawsuits that will bedevil educators for at least the next decade.”

Questions about the opinion’s reach

That statement underscores that the chief justice’s majority opinion did not make crystal-clear pronouncements about the reach of the decision. Roberts speaks specifically about the Harvard and UNC admissions systems in the opinion, and while no one is suggesting the decision is confined to those two institutions, the chief justice included a footnote to say that the nation’s military service academies, which consider race to boost diversity, were not before the court and that they present “potentially distinct interests.”

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 he warned that “universities may not simply establish through application essays or other means the regime we hold unlawful today.”

“A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination,” Roberts said. “Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race.”

Thomas, striking themes he has expressed before in his 32 years on the court, said, “I have long believed that large racial preferences in college admissions stamp blacks and Hispanics with a badge of inferiority.”

He said in his concurrence it was “particularly incongruous to suggest that a past history of segregationist policies toward blacks should be remedied at the expense of Asian American college applicants. But this problem is not limited to Asian Americans; more broadly, universities’ discriminatory policies burden millions of applicants who are not responsible for the racial discrimination that sullied our nation’s past.”

“Today’s 17-year-olds, after all, did not live through the Jim Crow era, enact or enforce segregation laws, or take any action to oppress or enslave the victims of the past,” Thomas said. “Our nation should not punish today’s youth for the sins of the past.”

Justice Thomas challenges dissent

Thomas devotes several pages of his concurrence to contesting the dissent of Jackson, the court’s first Black female justice.

“Rather than focusing on individuals as individuals, her dissent focuses on the historical subjugation of black Americans, invoking statistical racial gaps to argue in favor of defining and categorizing individuals by their race. As she sees things, we are all inexorably trapped in a fundamentally racist society, with the original sin of slavery and the historical subjugation of black Americans still determining our lives today.”

Jackson, in her dissent involving only the North Carolina case, responds to Thomas in a footnote: “He does not dispute any historical or present fact about the origins and continued existence of race-based disparity (nor could he), yet is somehow persuaded that these realities have no bearing on a fair assessment of individual achievement.”

Elsewhere in her opinion, Jackson says, “History speaks. In some form, it can be heard forever. The race-based gaps that first developed centuries ago are echoes from the past that still exist today. By all accounts, they are still stark.”

Sotomayor, in her 69-page dissent, said that for 45 years, the court had extended the legacy of the landmark 1954 decision in Brown v. Board of Education of Topeka, which struck down racial segregation schools.

Brown recognized that passive race neutrality was inadequate to achieve the constitutional guarantee of racial equality in a nation where the effects of segregation persist,” Sotomayor said. In a society where race continues to matter, there is no constitutional requirement that institutions attempting to remedy their legacies of racial exclusion must operate with a blindfold.”

Sotomayor ended her dissent by saying, “The pursuit of racial diversity will go on. Although the court has stripped out almost all uses of race in college admissions, universities can and should continue to use all available tools to meet society’s needs for diversity in education.”

She ended her written opinion with a version of the Rev. Martin Luther King Jr.’s 1965 observation about “the arc of the moral universe” bending toward racial justice.

In her statement from the bench on Thursday, she cited that line, but concluded with an even better known slogan of the civil rights era.

“We shall overcome,” she said.

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