Supreme Court guts affirmative action, effectively ending race-conscious admissions

By Nina Totenberg

Published June 29, 2023 at 10:10 AM EDT

A view of the U.S. Supreme Court in Washington, D.C., on June 5.

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Updated June 29, 2023 at 7:52 PM ET

In a historic decision, the U.S. Supreme Court on Thursday effectively ended race-conscious admission programs at colleges and universities across the country. In a decision divided along ideological lines, the six-justice conservative supermajority invalidated admissions programs at Harvard and the University of North Carolina.

The decision reverses decades of precedent upheld over the years by narrow Supreme Court majorities that included Republican-appointed justices. It ends the ability of colleges and universities — public and private — to do what most say they still need to do: consider race as one of many factors in deciding which of the qualified applicants is to be admitted.

Chief Justice John Roberts, a longtime critic of affirmative action programs, wrote the decision for the court majority, saying that the nation's colleges and universities must use colorblind criteria in admissions.

Majority opinion

"Many universities have for too long...concluded, wrongly, that the touchstone of an individual's identity is not challenges bested, skills built, or lessons learned but the color of their skin," he wrote. "Our constitutional history does not tolerate that choice."

Justice Clarence Thomas took the unusual step of reading from the bench parts of his lengthy concurring opinion.

Thursday's decision, he wrote, "sees the universities' admissions policies for what they are: rudderless, race-based preferences. ... Those policies fly in the face of our colorblind Constitution."

As he has done before, Thomas, the second black justice appointed to the court, reiterated his long-held view that affirmative action imposes a stigma on minorities. "While I am painfully aware of the social and economic ravages which have befallen my race and all who suffer discrimination, I hold our enduring hope that this country will live up to its principles that ... all men are created equal, are equal citizens, and must be treated equally before the law."

Roberts, for his part, pointed to the court's 2003 decision reaffirming the constitutionality of affirmative action programs, noting that Justice Sandra Day O'Connor, writing for the court at the time, had suggested that there would have to be an end at some future point. That time has now come, Roberts said.

Opposing view

"It feels tragic," said Columbia University President Bollinger, who has for 30 years been a leading proponent of affirmative action programs.

"It feels like the country has been on a course of choosing between a continuation of the great era of civil rights, and another view of 'We've done this long enough, and we need a whole new approach.' It's now the second choice."

That sentiment echoed Justice Sonia Sotomayor's dissent.

"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," she wrote.

Justice Ketanji Brown Jackson, the court's first Black female justice, also chimed in, saying: "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."

Indeed, the reality is that in those places where affirmative action has been eliminated, there has been a severe drop in minority, and particularly, African American, admissions. NYU law professor Melissa Murray was the acting dean at the University of California Berkeley in 2016 and 2017 when a state referendum barred the use of race in college admission decisions.

"There was an immediate drop off in the number of African American students that was both a confluence of the change in the admissions policy, but also African American students not wanting to go [to Berkeley] under those conditions," she said. "People don't want to be spotlighted. There is a kind of comfort in numbers, and it was very difficult for a very long time to recruit under those conditions."

Indeed, the situation got so bad, she says, that she had to go to the president of the state university system to get permission to place clusters of African American students in classes, instead of "sprinkling them around," leaving minority students alone to speak their mind when subjects of race were discussed.

Door is left slightly open

Now every school will be in that situation, or so it may seem.
The court did not entirely close the door to racial considerations in college admissions. As Roberts put it, "Nothing in this opinion should be construed as prohibiting universities from considering an applicants discussion of how race affected his or her life." Nor did the court address the tactic of clustering minority students in classes.

What's more, the court specifically left open the possibility that the nation's military academies, because of their "distinct interests," may be able to continue with their successful affirmative action programs, which have resulted in a very diverse officer corps.

"That issue is so sensitive because it raises the question of national security that the court has backed away from following its own logic," said University of California Berkeley professor Jerome Karabel.

He notes that a similar logic might apply to police forces seeking to recruit minorities so as to ensure that a virtually all white force would not be policing a majority Black town.

For the nation's colleges and universities, however, diversity will no longer be an acceptable rationale for taking race into account.

Broader impact

Thursday's decisions are likely to cause ripples throughout the country, and not just in higher education, but in selective primary and secondary schools like Boston Latin in Massachusetts, Thomas Jefferson high school in Virginia, and Bronx High School of Science in New York.

Ultimately, effects will be felt in every aspect of the nation's economic, educational, and social life--from the Rooney rule that requires a minority applicant be considered in all NFL coach hiring decisions to employment and promotion decisions, DEI programs in schools and workplaces, and much more.

"We're going to be fighting about this for the next 30 years," said Harvard law professor Randall Kennedy.

Edward Blum, who for decades has been a one-man crusader against everything from the landmark 1965 Voting Rights Act to affirmative action in higher education, plans to challenge some corporate boards on racial preference grounds, and he says he knows of other plans to challenge minority scholarship and fellowship programs.

UC's Karabel notes that there are already employment lawsuits pending, and "by the logic of this decision, I would think that racial discrimination, as defined by the court, would be banned in employment as well."

"It's going to open a Pandora's box across the country and across institutions and industries," said Harvard co-counsel Bill Lee in an NPR interview last fall.

How the case came to be

The court's decisions came in cases involving two elite institutions, one the oldest public university — the University of North Carolina — and the other, the oldest private university, Harvard. Blum, the anti-affirmative activist, likely chose these highly visible schools as his legal targets precisely because of their elite status.

UNC did not admit Black undergraduates until 1955, and then only after it was ordered to by the federal courts. Harvard, by contrast, became the model for affirmative action programs in 1978 when the Supreme Court cited the school's consideration of race as similar to other traits the school relied on to ensure a diverse student body. Thus, the court said back then that race could be one of many factors that the school considered, just as other characteristics were considered — geography, or being raised on a farm, or special achievements in everything from science to athletics, or being a so-called legacy student, the son or daughter of someone who attended Harvard.

That system, reaffirmed twice by the Supreme Court, has remained in place not just at Harvard, but at most of the institutions of higher learning across the United States. Until Thursday, when the court — as it did last year in the abortion case — upended decades of its own precedents.

The court majority made clear that it agreed with Students For Fair Admissions, which sued Harvard and UNC, claiming, among other things, that the schools discriminated against Asian American students who had SAT and grade scores higher than any other racial group, including whites, and who made up, at Harvard, for instance, 29% of the entering class last year. SFFA asserted that the number should have been higher than that, though Asians are just 7.2% of the U.S. population.

Harvard, in defending its current iteration of affirmative action, noted that each class has only 1,600 slots, but, by the numbers, it has thousands of equally qualified applicants. In the class of 2019, for instance, it had 35,000 applicants, 3,700 of them with perfect math SAT scores; 2,700 with perfect verbal SAT scores, and more than 8,000 with perfect grade point averages. There are no similar figures for the most recent incoming class at Harvard, but the number of applicants in 2023 has nearly doubled in the last four years.

What the public thinks

The reaction to Thursday's decision may be consternation in some quarters, but public opinion on affirmative action is not like abortion, a subject on which virtually every poll shows the public completely at odds with the court. Public opinion on affirmative actions is more nuanced and more mixed. Polls on the subject conflict: some show upwards of 60% approval for affirmative action programs, and others show less than 50% support.

Indeed, in liberal California, for instance, 57% of voters in 2020 cast their ballots against reinstating affirmative action in the state's public colleges and universities.

Generally, polls show that public support for affirmative action has grown in recent years, but voters are conflicted on the subject, with the outcome depending on how the question is asked. A recent Washington Post-Schar School Poll found that 6 in 10 Americans say race should not be considered in college admissions. But when the question was asked a slightly different way, the numbers showed big majorities endorsing programs to boost racial diversity on campuses.

And yet no alternative to affirmative action has worked as well as some consideration of race.

College admission administrators say schools that have tried to raise the numbers of Black and Latin0 students without any consideration of race have found that no other criterion — class, or economic status, or programs like a guarantee of admission for students in the top 5% or 10% of their high school class — works as well.

"The research is exceptionally clear," University of Texas professor Stella Flores, whose specialty is higher education and public policy, told NPR in an interview last fall. "There's no other alternative method that will racially diversify a student body, other than the use of race as one factor of consideration."

Court's 'double tak'

Harvard's Professor Kennedy points to what he calls "double talk: in the Supreme Court's Thursday opinion. Take two signs, he says: a sign that says "Black people stay out," and contrast it with a sign that says "Black people welcome."

"Both have race in them. Are they truly both racially discriminatory? The Supreme Court, at least on one side of its mouth, seems to say yes, they're both racially discriminatory. But at the end of the Supreme Court's opinion, it says, well of course one can look favorably on someone who's overcome racial impediments."

"I think we are at a very critical point," said Columbia President Bollinger, who, earlier in his career, shaped the affirmative action program at the University of Michigan, a program that was upheld in 2003. He sees the landscape of admissions systems now shifting markedly, with "the demise" of school rankings, and less emphasis on standardized test scores. Columbia, he notes, has more veterans than any other Ivy League college. "I think there will be a lot of experimentation in admissions, as there should be over the next decade."

The magnitude of Thursday's decision was emphasized by the fact that, in all, six justices wrote separately. And three justices spoke for more than 40 minutes from the bench--the chief justice in the majority, Thomas concurring, and Sotomayor in dissent. Indeed, in print, the Supreme Court's decisions, plus dissents and concurrences, reached a book-sized 237 pages.

Race has never been any easy subject for Americans to deal with, and it's about to get a lot harder.

Meghanlata Gupta contributed to this story.