UPDATED at 11:25 a.m. Thursday, June 29, 2023 with reactions and more information.
WASHINGTON — The U.S. Supreme Court on Thursday ruled that two prominent universities’ consideration of race in acceptances violated the U.S. Constitution, effectively reshaping the role of affirmative action in the college admissions process throughout higher education.
In a 6-3 decision, Chief Justice John Roberts, writing for the majority, wrote that the admissions processes at Harvard University and the University of North Carolina violate the equal protection clause of the 14th Amendment.
“Because Harvard’s and UNC’s admissions 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, those admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause,” Roberts wrote.
“Many universities have for too long 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. This Nation’s constitutional history does not tolerate that choice,” Roberts continued.
Conservative Justice Clarence Thomas delivered a concurring opinion to provide an “originalist defense of the colorblind Constitution,” he wrote.
While still acknowledging the presence of racial discrimination, Thomas opined that under the 14th Amendment, the law disregards racial distinctions.
“(U)nder our Constitution, race is irrelevant, as the Court acknowledges. In fact, all racial categories are little more than stereotypes, suggesting that immutable characteristics somehow conclusively determine a person’s ideology, beliefs, and abilities. Of course, that is false,” he wrote.
Because Harvard is a private institution and UNC is a public institution, this decision affects higher education across the board. Democrats and President Joe Biden swiftly criticized the ruling and Biden, speaking from the White House, announced actions by the Department of Education that he said would continue to promote diversity and opportunity in higher education.
“This is a not a normal court,” Biden said when asked by a reporter about comments by the Congressional Black Caucus that the court “has thrown into question its own legitimacy.”
The three liberal Justices, Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, dissented with the majority opinion.
Sotomayor wrote the dissent, where she argued that while the equal protection clause “enshrines a guarantee of racial equality,” the Supreme Court “long ago concluded that this guarantee can be enforced through race-conscious means in a society that is not, and has never been, colorblind.”
“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 wrote. “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.”
Sotomayor argued that Harvard and UNC both “have sordid legacies of racial exclusion.” UNC’s founders included slaveholders and members of the white supremacist group the Ku Klux Klan and the university resisted integration until it finally admitted the first Black student in 1963, she wrote.
“To this day, UNC’s deep-seated legacy of racial subjugation continues to manifest itself in student life,” she wrote, pointing out that many buildings still bear the names of members of the Ku Klux Klan.
Sotomayor noted that slavery and racial subordination were integral to Harvard’s founding.
“It is against this historical backdrop that Harvard and UNC have reckoned with their past and its lingering effects,” she wrote.
“At bottom, 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 continued.
‘My heart breaks’
Less than an hour after the decision, former President Barack Obama, the nation’s first Black leader to hold the office, and former first lady Michelle Obama released statements in reaction to the decision that included links to scholarship funds and organizations focused on college access for minority students.
“So often, we just accept that money, power, and privilege are perfectly justifiable forms of affirmative action, while kids growing up like I did are expected to compete when the ground is anything but level,” Michelle Obama said.
“So today, my heart breaks for any young person out there who’s wondering what their future holds — and what kinds of chances will be open to them. And while I know the strength and grit that lies inside kids who have always had to sweat a little more to climb the same ladders, I hope and I pray that the rest of us are willing to sweat a little, too,” she continued.
Former President Obama said affirmative action “wasn’t perfect.”
“But it allowed generations of students like Michelle and me to prove we belonged. Now it’s up to all of us to give young people the opportunities they deserve — and help students everywhere benefit from new perspectives,” he said.
More details on justices’ opinions
Jackson joined the dissenting opinion but recused herself from the Harvard portion of the decision.
Jackson participated in the debate of the UNC case but not the Harvard case because she is a graduate of Harvard College and Harvard Law School and recently sat on the Harvard Board of Overseers, which is one of the two governing boards for Harvard University.
However, Jackson did write a dissenting opinion in the UNC case. She separately addressed the issue that brought the case to the court, “that it is unfair for a college’s admissions process to consider race as one factor in a holistic review of its applicants.”
She argues that the response to that notion is simple: “Our country has never been colorblind.”
She pointed to the legacy of discrimination and inability to build wealth due to slavery and historic racism that followed from denying Black American veterans access to G.I. bills, forcing newly freed slaves into sharecropping, and redlining of Black neighborhoods.
“The point is this: Given our history, the origin of persistent race-linked gaps should be no mystery,” Jackson wrote. “The race-based gaps that first developed centuries ago are echoes from the past that still exist today.”
Jackson also noted that UNC does not require applicants to disclose race and that the university’s admission process “permits” and “does not require” the use of race in its acceptances.
“With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat. But deeming race irrelevant in law does not make it so in life,” Jackson wrote.
“And having so detached itself from this country’s actual past and present experiences, the Court has now been lured into interfering with the crucial work that UNC and other institutions of higher learning are doing to solve America’s real-world problems.”
But in his opinion concurring with the majority, Thomas argued that the plaintiffs failed to prove the educational goals of race-based admissions and that affirmative action highlights racial differences with a “pernicious effect.”
“It may be the case that exposure to different perspectives and thoughts can foster debate, sharpen young minds, and hone students’ reasoning skills. But, it is not clear how diversity with respect to race, qua race, furthers this goal. Two white students, one from rural Appalachia and one from a wealthy San Francisco suburb, may well have more diverse outlooks on this metric than two students from Manhattan’s Upper East Side attending its most elite schools, one of whom is white and other of whom is black,” he wrote.
“If Harvard cannot even explain the link between racial diversity and education, then surely its interest in racial diversity cannot be compelling enough to overcome the constitutional limits on race consciousness.”
In closing Thomas wrote: “While I am painfully aware of the social and economic ravages which have befallen my race and all who suffer discrimination, I hold out enduring hope that this country will live up to its principles so clearly enunciated in the Declaration of Independence and the Constitution of the United States: that all men are created equal, are equal citizens, and must be treated equally before the law.”
Two lawsuits
The decision stems from a 2014 lawsuit against Harvard College and a separate lawsuit against the University of North Carolina. The two suits sought to overturn Grutter v. Bollinger, which was how universities used race-conscious admissions until Thursday.
Harvard and UNC have argued that race is one of the many factors that the universities consider in admissions, along with socioeconomic status and extracurricular activities, and they make admission decisions within the guidelines set by Grutter.
Both suits were filed by a group called Students for Fair Admissions, which is funded by Edward Blum, a conservative legal activist who has launched multiple lawsuits over what he sees as racial preferences in school admissions.
Students for Fair Admissions did not respond to States Newsroom’s request for comment.
For the Harvard case, the group alleges that Harvard violated Title VI of the Civil Rights Act because Asian American applicants are less likely to be admitted compared to similarly qualified Black, Latino or Indigenous applicants. Title VI bars institutions that receive federal funding from discrimination on the basis of race.
The UNC case argues that because the university takes into consideration race in its admissions process, it violates the 14th Amendment’s equal protection clause.
Federal courts rejected Students for Fair Admissions’ arguments and sided with the universities.
Timothy Welbeck, who is the director of the center for anti-racism at Temple University in Philadelphia, said in an interview that the court striking down affirmative action will “undo the attempts to correct centuries of racialized segregation through the educational institutions across the country.”
Welbeck, who is also a civil rights attorney, said Students for Fair Admissions brought suits against both Harvard and UNC so the outcomes would be similar for public and private institutions.
“Both institutions, or types of institutions that is, are limited in how they can consider race, if at all, in their admissions decisions,” he said.
He pointed out that legacy admissions, in which institutions give preferences to applicants if their families attended those same schools, make up about 43% of white Harvard applicants admitted to the school.
“Holding a legacy as a consideration in admissions but not considering historically disadvantaged populations is contradictory on its face,” Welbeck said.
Affirmative action stemmed from the civil rights movement of the 1960s, when President Lyndon B. Johnson issued an executive order barring discrimination in the workplace based on race, religion — and later gender — by those entities that received federal contracts and subcontracts.
There are nine states that have banned race-based affirmative action from being implemented in public institutions: Florida, California, Michigan, Nebraska, Arizona, New Mexico, Oklahoma and Idaho. Washington state rescinded its ban on affirmative action in 2022.
Oral arguments
During oral arguments last year, members of the court’s conservative wing, who now make up a 6-3 majority, questioned if it is legal for universities to consider race and for how long such policies should endure, pointing to a 2003 case that predicted that affirmative action would no longer be needed in 25 years.
The case, Grutter vs. Bollinger, allowed the limited use of race to be considered in college admissions, and held that race was merely one of many considerations given in an applicant. The case allowed the University of Michigan Law School to consider race in its admissions process in order to help create a diverse student body.
Justice Clarence Thomas, a conservative and the only Black man on the Supreme Court, pressed lawyers defending the schools’ policies on how diversity benefited education.
“I didn’t go to racially diverse schools but there were educational benefits. And I’d like you to tell me expressly when a parent sends a kid to college that they don’t necessarily send them there to have fun or feel good or anything like that. They send them there to learn physics or chemistry or whatever they’re studying,” Thomas said to Ryan Park, the attorney representing UNC. “So tell me what the educational benefits are to that?”
During oral arguments in October of last year, supporters of affirmative action rallied outside the Supreme Court.
Members of Congress react
In a statement, Democratic Senate Majority Leader Chuck Schumer of New York called the decision “misguided” and said it “has put a giant roadblock in our country’s march toward racial justice.”
“The consequences of this decision will be felt immediately and across the country, as students of color will face an admission cycle next year with fewer opportunities to attend the same colleges and universities than their parents and older siblings,” he said. “These negative consequences could continue for generations, as the historic harms of exclusion and discrimination in education and society are exacerbated.”
GOP lawmakers hailed the decision.
Senate Minority Leader Mitch McConnell, a Kentucky Republican, said in a statement that the decision will ensure equal protection under the law.
“Most Americans agree that racial discrimination should play no part in the college admissions process,” he said. “Now that the Court has reaffirmed that commonsense position, students can get a fair shot at college and the American dream on their merits.”
McConnell was pivotal in confirming three Supreme Court Justices under the Trump administration when he led the Republican majority in the Senate. The three Trump nominees cemented the court’s conservative majority.
Trump nominated Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
Republican Rep. Virginia Foxx of North Carolina, who chairs the House Education and Workforce Committee, said in a statement that the court’s decision was a “victory for countless students across the country.”
“In America, fairness is the key to educational opportunity, where one’s success is judged by merit rather than arbitrary quotas,” she said. “Postsecondary education has been plagued by affirmative action for far too long, and I’m pleased that the Supreme Court has finally upheld the equal protection of students. Fairness and merit will finally receive the due deference they deserve.”
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