Supreme Court guts affirmative action

The Supreme Court shot down affirmative action policies at Harvard and the University of North Carolina on Thursday, tightening restrictions on the use of race in college admissions.

“University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and — at some point — they must end,” Chief Justice John Robert wrote for the 6-3 majority. “Respondents’ admissions systems — however well intentioned and implemented in good faith — fail each of these criteria. They must therefore be invalidated under the Equal Protection Clause of the Fourteenth Amendment.” 

Roberts said programs at both universities could not stand with equal protection guarantees. 

“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,” Roberts wrote. “We have never permitted admissions programs to work in that way, and we will not do so today.” 

Justice Sonia Sotomayor dissented, saying the ruling rolled back decades of progress. The Obama appointee read her dissent from the bench, marking the first occurrence of the practice since June 2019.

“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 wrote. 

The issue bubbled up from a challenge led by the group Students for Fair Admissions and conservative activist Edward Blum, who claim that the use of affirmative action policies does more harm than good. They accused Harvard and the University of North Carolina of violating the Constitution and the Civil Rights Act.

Brown v. Board of Education famously struck down school segregation as unconstitutional, but bringing diversity to education was not as simple as the Warren court would have hoped. A little over a decade after Brown in Green v. County School Board of New Kent County, the court would mandate schools create plans to end segregation in schools. Even then, diversifying schools was a challenge, forcing universities to take extra actions to integrate. 

The court entered the fight over race in education again in the 1978 case Regents of the University of California v. Bakke, this time authorizing the use of race in admissions policies. It would be another two decades before the court directly ruled on affirmative action policies in Grutter v. Bollinger — the precedent at issue in this case. 

Students for Fair Admissions alleges that if Brown exists, then Grutter can not.

“Racial classifications are wrong,” Patrick Strawbridge, an attorney from Consovoy McCarthy representing the group, said during oral arguments. “That principle was enshrined in our law at great cost following the Civil War. A century of resistance to race neutrality followed, but this Court's landmark decision in Brown finally and firmly rejected the view that racial classifications have any role to play in providing educational opportunities.” 

This is not Grutter’s first trip to the Supreme Court chopping block. After examining the use of race in admissions at the University of Texas in 2012 and again 2015, the court found those policies constitutional in both cases. 

The dueling lawsuits filed against Harvard and UNC in 2014 allege the universities’ policies discriminate against white and Asian American students. Four years after the suit was filed, Harvard came out on top. UNC also prevailed in its suit. 

Since the lower court found Harvard and UNC’s use of affirmative action policies did not violate the court’s precedents, Students for Fair Admissions targeted the rulings themselves. The group argued that Harvard and UNC’s policies violated the Equal Protection Clause and Title VI of the Civil Rights Act.

The universities maintain that their policies comply with the court’s precedents and that they serve a compelling interest of the schools. 

“It was Brown's vision that education could be the engine of our democracy, a place where students could prepare for the rights and obligations of citizenship in a diverse and inclusive setting,” Ryan Young Park, North Carolina solicitor general, said during oral arguments. “The University of North Carolina at Chapel Hill seeks to fulfill Brown's vision by assembling a student body that is diverse along the many dimensions that matter in American life, including race, but also social class, geography, military status, intellectual views, and much more.” 

Harvard told the justices that diversity in education extrapolates into diversity in the broader society. 

“Student body diversity makes our businesses more innovative and globally competitive, our scientists more creative, our medical professionals more effective, and our military more cohesive,” Seth Waxman, an attorney with WilmerHale representing Harvard, said during oral arguments. 

Americans have shown division over the practice, with a recent study by the Pew Research Center finding that 50% of Americans disapprove. Republicans and Republican-leaning independents led objections to affirmative action with nearly three-quarters saying they disapprove. On the other side of the aisle, 54% of Democrats approved of these policies. 

Justice Clarence Thomas took the unusual step of reading his concurrence from the bench on Thursday. The Bush appointee said he agreed that the universities’ programs should be shot down, but he thought the court should have gone further. 

“We should not repeat this mistake merely because we think, as our predecessors thought, that the present arrangements are superior to the Constitution,” Thomas wrote. 

Although the majority declined to say so, Thomas says the ruling effectively overturns the court’s precedents on affirmative action. 

“The Court’s opinion rightly makes clear that Grutter is, for all intents and purposes, overruled,” Thomas wrote. “And, 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.”

Sotomayor said the ruling puts a rule of race blindness in place that will have devastating impacts.

“The majority’s vision of race neutrality will entrench racial segregation in higher education because racial inequality will persist so long as it is ignored,” Sotomayor wrote. 

Justice Ketanji Brown Jackson said the majority’s ruling stunts the progress the country has made against historical discrimination. Instead of upholding equal protection, Jackson says the ruling flies in its face. 

“It would be deeply unfortunate if the Equal Protection Clause actually demanded this perverse, ahistorical, and counterproductive outcome,” the Biden appointee wrote. “To impose this result in that Clause’s name when it requires no such thing, and to thereby obstruct our collective progress toward the full realization of the Clause’s promise, is truly a tragedy for us all.” 

Advocacy groups supporting the policy were disappointed by the ruling and said it would hinder diversity efforts on campuses. 

“Today’s decision by a majority white and male Supreme Court does not surprise — but it does dismay,” Analilia Mejia, Center for Popular Democracy Action’s co-executive director, said in a statement. “The decision to end affirmative action in higher education will have far-reaching negative effects on admissions and the diversity of college campuses, particularly impacting Black and Latiné students who already face significant disadvantages.” 

However, that opinion was not universal. Kenneth L. Marcus, who previously served as assistant secretary of education for civil rights, commended the court for what he described as a bold ruling based on moral clarity. 

“Harvard’s plan was developed, at its outset, with an intent to limit enrollment of Jewish students and has created continuing inequities for Asian Americans over time,” Marcus, who is currently chairman at the Louis D. Brandeis Center for Human Rights Under Law, said in a statement.