Washington On Thursday, the Supreme Court ruled that the race-conscious admissions policies of Harvard College and the University of North Carolina violate the Constitution, putting an end to affirmative action in higher education and sending shockwaves across college campuses across the country.

In the University of North Carolina case, the court ruled 6-3 along ideological lines, and in the Harvard case, 6-2, as Justice Ketanji Brown Jackson recused herself.

Chief Justice John Roberts, accompanied by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, authored the majority opinion. Thomas delivered a concurrence from the bench.

Justice Sonia Sotomayor was the first dissenting justice to do so this term when she read her dissent audibly.

“The Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause,” wrote Roberts. “Both programs lack sufficiently concentrated and measurable objectives to justify the use of race, employ race in an unavoidably negative manner, engage in racial stereotyping, and lack meaningful endpoints. We have never allowed admissions programs to operate in this manner, and we will not do so today.

Roberts, however, wrote that universities may still examine “an applicant’s discussion of how race has affected his or her life, whether through discrimination, inspiration, or otherwise.” Due to their “potentially distinct interests”, military academies are effectively exempt from the decision.

The chief justice concluded that students must be evaluated based on their experiences “as individuals, not on the basis of race.”

“Many universities have done the opposite for too long,” Roberts stated. “In doing so, they have incorrectly concluded that the defining characteristic of an individual is not overcoming obstacles, developing abilities, or learning lessons, but rather the color of their skin. Our constitutional history prohibits this option.”

Sotomayor stated in a vehement dissent that the majority opinion is “not grounded in law or fact and violates the Fourteenth Amendment’s vision of equality.”

“Today, this Court stands in the way and undoes decades of precedent and significant advancement. It holds that race cannot be used in college admissions in a limited capacity to accomplish such crucial benefits,” she wrote. “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.”

On June 29, 2023, in Washington, D.C., a group of people wearing face masks to defend against air pollution walked past the Supreme Court Building.
On June 29, 2023, in Washington, D.C., a group of people wearing face masks to defend against air pollution walked past the Supreme Court Building.

Sotomayor, joined by Justice Elena Kagan and Justice Robert Jackson, stated that the court’s decision “subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society.”

Jackson, the first Black woman to serve on the Supreme Court, lambasted the court’s decision in a separate dissent in the University of North Carolina case, writing that the majority “strides to vindicate equality, but Don Quixote style—pitifully perceiving itself as the sole vanguard of legal high ground when, in reality, its perspective is not constitutionally compelled.”

She wrote, “Simply put, the race-blind admissions stance that the Supreme Court mandates from this day forward is unmoored from crucial real-world circumstances.” “Therefore, the Court’s interference not only halts the noble generational project that American universities are attempting, but it also, in effect, launches a disastrously misguided sociological experiment.”

Upending past Supreme Court decisions

Though Roberts’ majority opinion did not explicitly overturn the court’s precedent allowing schools to consider race in admissions decisions—a 2003 case known as Grutter v. Bollinger—Thomas wrote in his concurring opinion that the 2003 decision is “effectively overruled,” and Sotomayor accused the conservative majority of “overturning decades of precedent.”

The decision is the latest in which the Supreme Court’s conservative majority has overturned decades of prior decisions involving issues that have shaped American life, highlighting the influence of the three justices appointed by former President Donald Trump.

In its last term, the Supreme Court reversed its landmark Roe v. Wade decision, reversing the 1973 constitutional right to abortion. This decision heightened concerns that other long-standing precedents, including those affirming the constitutionality of race-conscious admissions programs, could be overturned.

The assumption that affirmative action would not withstand the scrutiny of the Supreme Court has been confirmed. Universities have warned that ending race-conscious admissions programs would result in a significant decline in the representation of Black and Hispanic students, particularly at prestigious institutions, where the decision will be felt most keenly.

Harvard’s court filings indicate that more than forty percent of universities and sixty percent of selective institutions consider race in admissions decisions. According to the Biden administration, institutions including the service academies, the U.S. military, and the federal government have relied on past Supreme Court decisions recognizing that the educational benefits of diversity justify limited consideration of race in admissions.

In remarks from the White House, President Biden condemned the court’s rejection of affirmative action in higher education and stated that racial diversity strengthens not only institutions but the entire nation.

“We cannot let this decision be the last word,” he stated. “Although the court can render a ruling, it cannot alter what America stands for.” America is a concept that is unique around the globe. A concept of hope and possibility, of giving everyone an equal chance and leaving no one behind. We have never entirely lived up to it, but we have also never abandoned it. We will not abandon it at this time.”

In response to a reporter’s inquiry as to whether the Supreme Court is “rogue,” Mr. Biden stated, “This is not a normal court.”

How did these cases reach the Supreme Court, and what is affirmative action?
Affirmative action refers to policies instituted by schools or employers to increase the diversity of a student body or workforce by taking candidates’ ethnicity into account. Since its inception in the 1960s to combat racial discrimination, the concept has been controversial, with critics claiming that the practice itself amounts to racial discrimination against non-minorities. Proponents of affirmative action policies in higher education argue that race should be considered as part of a “holistic” evaluation of candidates and that the policies are essential for increasing diversity and ensuring equal access to institutions for underrepresented groups.

Nine states, including Arizona, California, Florida, Idaho, Michigan, Nebraska, New Hampshire, Oklahoma, and Washington, have banned affirmative action in public universities.

Harvard, the nation’s oldest private institution, and the University of North Carolina, the nation’s oldest public university, were involved in cases before the court this term. Both lawsuits were filed in November 2014 by Students for Fair Admissions, a group founded by Ed Blum, a conservative activist who has fought for years to end the use of racial preferences in American society.

In the Harvard case, the organization asserted that the school’s race-conscious admissions policies violated Title VI of the Civil Rights Act, which prohibits racial discrimination in federally funded programs and activities, by discriminating against Asian-American applicants. Students for Fair Admissions accused Harvard of rating Asian-American students lower on personality traits than students of other ethnicities and limiting the number of Asian-American applicants it accepts.

Students for Fair Admissions accused the University of North Carolina of violating the 14th Amendment’s Equal Protection Clause because it disregards race-neutral alternatives to achieve diversity among its student body.

Both universities denied discriminating against applicants of Asian descent.

Lower courts upheld the policies at each of the schools, finding that race was one of many factors considered in the schools’ holistic admissions processes and that the policies were consistent with the Supreme Court’s 2003 decision in Grutter, which stated that the narrowly tailored use of race in admissions decisions is permitted by the Constitution.

Sandra Day O’Connor, writing for the majority in Grutter, predicted that “in 25 years, the use of racial preferences will no longer be necessary.” During oral arguments in the Harvard and University of North Carolina cases, the proposed date of 2028 was questioned as to when race would no longer be a factor in college admissions.

Roberts, writing on behalf of the majority, stated that neither Harvard nor the University of North Carolina conveyed to the court that their race-based admissions programs had end dates.

In conclusion, he stated, “There is no reason to believe that respondents, even if acting in good faith, will soon comply with the Equal Protection Clause.”

In 2016, the Supreme Court last considered the legality of race-conscious admissions programs in a Blum-supported challenge to the policies at the University of Texas at Austin. In that case, a divided court ruled for the second time that race could be a factor in ensuring student body diversity.

Since then, however, the composition of the court has changed dramatically, with Sotomayor being the only justice who was in the majority seven years ago. (Kagan was disqualified from the case.)

In January 2022, the Supreme Court consented to revisit the affirmative action debate. Initially, the Harvard and University of North Carolina cases were consolidated, but after Jackson joined the court and recused herself from the Harvard dispute, they were separated.

The responses of Harvard and UNC to the Supreme Court’s decision
Kevin Guskiewicz, chancellor of the University of North Carolina at Chapel Hill, stated that the institution will take the necessary measures to comply with the decision.

“Carolina remains committed to bringing together talented students with diverse perspectives and life experiences, and it continues to make affordable, high-quality education available to North Carolinians and beyond,” he said.

Harvard officials reaffirmed their commitment to diversity in its student body, describing it as “essential to the academic experience.”