Supreme Court Rules Against Race-Based Affirmative Action

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The U.S. Supreme Court ruled Thursday that the race-conscious college admissions processes at Harvard and the University of North Carolina are unconstitutional.

In a 6-3 decision along ideological lines, the justices ruled that the admissions policies that include race as a factor violate the Equal Protection Clause.

“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,” Chief Justice John Roberts wrote in the majority opinion. “This Nation’s constitutional history does not tolerate that choice.”

In one case, Harvard University was accused of discriminating against Asian Americans in its admissions process, while in another, the University of North Carolina at Chapel Hill was accused of giving preference to Black, Hispanic, and Native American applicants over white and Asian applicants. Both cases were filed by Students for Fair Admissions led by Edward Blum, a conservative activist who is best known for his efforts to challenge affirmative action policies.

“We have permitted race-based admissions only within the confines of narrow restrictions,” Roberts wrote. “University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and—at some point—they must end. Respondents’ admissions systems—however well intentioned and implemented in good faith—fail each of these criteria.”

Read More: How the Supreme Court’s Affirmative Action Decision Affects the AAPI Community

The Court determined that using race as a factor in college admissions necessarily—and unconstitutionally—hurt some races and helped others. “College admissions are zero-sum. A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter,” Roberts wrote.

Americans’ views are divided on race-based affirmative action. A Pew Research Center poll published June 8 found half of American adults disapprove of elite colleges and universities considering an applicant’s race or ethnicity when making admissions decisions. “The devastating impact of this decision cannot be overstated,” Justice Sonia Sotomayor wrote in her dissenting opinion. “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.”

The Supreme Court said colleges can still consider race obliquely: “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,” Roberts wrote.

The two Black justices on the Supreme Court held opposite views. “With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat,” Justice Ketanji Brown Jackson wrote in a dissenting opinion. (She recused herself from the Harvard case because she has served on Harvard’s Board of Overseers.) “But deeming race irrelevant in law does not make it so in life.” In his concurring opinion, Justice Clarence Thomas slammed her “race-infused world view” and claimed she “locks blacks into a seemingly perpetual inferior caste. Such a view is irrational; it is an insult to individual achievement and cancerous to young minds seeking to push through barriers, rather than consign themselves to permanent victimhood.”

Read More: Read Justice Sotomayor and Jackson’s Dissents in the Affirmative Action Case

Still, the decision marks a dramatic change in higher education in the U.S. Colleges and universities will have to come up with new ways to recruit diverse student bodies. And it remains to be seen how the decision will affect the economy and society more broadly, if college campuses become less diverse and fewer minority college graduates could enter the job market.

Decades of precedent

The decision marks a departure from about 45 years of precedent for upholding affirmative action. The term dates back to a 1961 executive order from John F. Kennedy to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color or national origin.” His successor President Lyndon B. Johnson expanded this mandate, and over time it began to be associated with education.

On June 26, 1978, the Supreme Court handed down the first major affirmative action decision concerning university admissions, involving a 38-year-old white engineer Allan Bakke’s petition to enter a California medical school. The case, Regents of the University of California v. Bakke, made the cover of the TIME’s July 10, 1978, issue, and in the Letter from the Publisher, Hays Gorey, the main TIME correspondent following the case, argued that the decision left a lot undecided, stating, “Before the Bakke ruling, the question was how America could remedy the effects of past discrimination without indulging in present and future discrimination. And that is still the question.”

As TIME described the ruling at the time:

It had been heralded as the most important civil rights case since Brown vs. Board of Education, the 1954 ruling that outlawed racial segregation in the schools and ultimately in all of American life. The nation had moved far in 25 years, but the goal of equality had remained elusive, and the question now before the Supreme Court in the case of Regents of the University of California v. Bakke seemed infinitely perplexing: Is it fair to give some preference to blacks over whites in order to remedy the evils of past discrimination?

Split almost exactly down the middle, the Supreme Court last week offered a Solomonic compromise. It said that rigid quotas based solely on race were forbidden, but it also said that race might legitimately be an element in judging students for admission to universities. It thus approved the principle of “affirmative action,” the system by which the Government is pressuring U.S. universities, corporations and other institutions to provide more jobs and better pay for millions of blacks, other minorities and women. Despite a flurry of protest demonstrations by militants, most observers praised the court for a cautious but astute effort at reconciling conflicting forces–but they also foresaw many future conflicts in the actual carrying out of the court’s new edict.

One of those future conflicts would be Grutter v. Bollinger (2003), when Barbara Grutter, a white woman from Michigan, sued because she was rejected from the University of Michigan. Even former President Gerald Ford, a Michigan alum, wrote an op-ed for the New York Times warning that if the court did not allow Michigan to consider race when putting together its student body, it would be a throwback to an era when “were isolated and penalized for the color of their skin…or national ancestry.” He recalled a story from 1934 when his Black teammate, Willis Ward, benched himself because the visiting Georgia Tech football team wouldn’t play against a Black American. The Supreme Court’s June 23, 2003, decision marked the first time a majority of Supreme Court justices supported considering race as a factor in university admissions.

And yet litigation related to affirmative action policies continued over the past 20 years. In 2013, the U.S. Supreme Court considered a case involving Abigail Fisher, a white woman from Texas, who claimed that she didn’t get into the University of Texas’s flagship Austin campus because she was white. The top 10% of Texas high school seniors are automatically admitted, but the university has considered race in evaluating students, like Fisher, who are not in the top 10% of their class. The Supreme Court sent the case back down to a lower court, but when the case came back on the Court’s docket in 2016, and the majority of the justices 4-3 opposed quotas but maintained that race could be considered as one of many admissions factors.

In the last decade, how Asian Americans are evaluated in university admissions has become a new focus of the affirmative action debate. Michael Wang became one of the most prominent of these activists after he argued he was rejected from several Ivy League and elite universities in 2013 because of his race and filed a complaint with the Department of Education against three schools that rejected him–Princeton, Yale and Stanford–which raised awareness of how Asian applicants are treated by admissions officers. Though he enrolled at Williams College—which, historically, has been ranked the #1 small liberal arts college in the nation by U.S. News & World Report—he continued to speak out on affirmative action issues, telling TIME in 2018, “I believe affirmative action in principle is absolutely okay and needed. But in practice, it is flawed and definitely needs some kind of changes to fit the modern-day age.”

But Wang expressed regret about the state of the affirmative action debate in an Oct. 10, 2022, PBS Retro Report segment, admitting, “I think I may have set in motion things that might have been out of control. Affirmative action might just get completely tossed and I don’t fully agree with that.”

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