U.S. Supreme Court strikes down affirmative action in college admissions

In a 6-3 vote, the U.S. Supreme Court Thursday ended colleges’ ability to consider race in the admissions process, in a landmark decision that comes after decades of legal precedent supporting the practice, commonly known as race-conscious admissions or race-based affirmative action.

The court heard two cases brought by the same plaintiff, Students for Fair Admissions, a nonprofit organization led by Edward Blum. For decades, Blum has tried to end any consideration of race in American legal systems.

The two cases against Harvard University and the University of North Carolina at Chapel Hill are the seventh and eighth cases brought to the highest court by Blum.

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Colleges are no longer allowed to consider an applicant’s race in order to admit a diverse class based on the court’s ruling that Harvard’s and the University of North Carolina’s admissions programs violate the Equal Protection Clause of the 14th Amendment.

In the court’s opinion, Chief Justice John Roberts wrote that the admissions programs “unavoidably employ race in a negative manner, involve racial stereotyping and lack meaningful end points.”

Roberts also wrote that this decision should not prevent colleges from considering “an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration or otherwise... [The] student must be treated based on his or her experiences as an individual — not on the basis of race.”

Justices Sonia Sotomayor and Ketanji Brown Jackson wrote dissenting opinions. “Although the Court has stripped out almost all uses of race in college admissions, universities can and should continue to use all available tools to meet society’s needs for diversity in education,” Sotomayor wrote. “Despite the Court’s unjustified exercise of power, the opinion today will serve only to highlight the Court’s own impotence in the face of an America whose cries for equality resound.”

Brown Jackson wrote: “It would be deeply unfortunate if the Equal Protection Clause actually demanded this perverse, ahistorical, and counterproductive outcome. 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.”

Many colleges started considering race in admissions during the civil rights era as a remedy to past discrimination. Later, the court found that diversity is a “compelling interest” for colleges.

The rationale is that diversity “enriches the educational mission of universities and better prepares people to enter a diverse and increasingly interconnected world,” said Brian Serr, a law professor at Baylor University.

“Every school has its own twist on how it executes affirmative action plans,” Serr said. He explained that quotas, for example, are unlawful. Colleges are not allowed to reserve a percentage of its admitted class to students of a particular race.

But since the 1970s, considering race as one of many factors as part of a holistic process has been allowed, Serr said.

In order to admit a diverse class, colleges also consider other kinds of diversity beyond race that are not challenged in the two cases. They seek students from a variety of geographical locations, socioeconomic backgrounds and academic interests.

None of these other factors have been controversial. And they are not illegal for colleges to consider.

“Discriminating on the basis of class is not unconstitutional,” Serr added.

Those who oppose race-based affirmative action argue that the practice is not necessary in 2023 and that colleges discriminate against white and Asian American applicants. Some call it “reverse discrimination.”

Meanwhile, those who defend affirmative action argue that the practice is still needed due to present-day consequences of past discrimination.

A survey conducted by the Pew Research Center that was released in early June found that 50% of Americans disapprove of colleges considering race in admissions decisions. Meanwhile, 33% approved and 16% were not sure.

The recent rulings will push colleges to find alternative ways to admit diverse classes without considering race.

North Texas universities respond

After the ruling was announced Thursday, some universities in North Texas made public statements about the decision. “At the University of North Texas System, we do not have race-based admissions, as we accept all qualified students and are deeply committed to their success,” Laken Avonne Rapier, chief communications officer, said in a statement.

“UT-Dallas does not consider race in our admissions and scholarship decisions,” UT-Dallas President Richard Benson said in an email, “and we will continue to foster an open, inclusive and diverse community.”

Benson said that the university will analyze the Supreme Court ruling and ensure all students are welcomed and supported.

SMU President R. Gerald Turner wrote an email to students and staff stating that diversity is woven into the academic excellence of SMU.

“Despite the implications this ruling may have on policies and practices at SMU and every other college campus in America, we will continue to be a welcoming and supportive community,” Turner said. “We will determine how the specifics of the high court’s ruling will affect the consideration of race in our enrollment efforts.”

Harvard and North Carolina

The court’s decision was based on two separate cases brought by Edward Blum’s organization Students for Fair Admissions.

The 71-year-old, who is white, is a conservative activist who used to be a stockbroker and failed in a run for Congress as a Republican in Houston in 1992. He has single-handedly brought eight cases to the Supreme Court, beginning in 1996. Each of them challenged either affirmative action or voting rights.

Two of them were against the University of Texas at Austin. On behalf of Abigail Fisher, a white applicant who was rejected by the university, Blum argued that the university’s consideration of race penalized Fisher and violated the equal protection clause of the 14th Amendment. Both cases failed.

Since then, the court shifted to a more conservative configuration of justices, and during oral arguments in October 2022, they seemed sympathetic to Blum’s cases.

The Harvard University case argued that the university discriminates against Asian American applicants because past admissions data suggests they’re less likely to be admitted than white, Black and Latino applicants with similar academic backgrounds.

Students for Fair Admissions

The lawyers for Students for Fair Admissions stated Harvard’s admissions policy violates Title VI of the Civil Rights Act of 1964, which prohibits institutions that receive federal funding from discriminating against people based on race.

Harvard argued that the allegations made by Students for Fair Admissions are “dangerously misleading, distorting data to reach preconceived and wrong conclusions” and that its admissions process considers race one as many factors, as permitted by law.

In the case against the University of North Carolina at Chapel Hill, Blum’s organization argued that the university discriminates against Asian American and white applicants by giving preferences to Black, Latino and Native American students who are classified as “underrepresented minorities.” Students for Fair Admissions stated that this practice violates Title VI and the Fourteenth Amendment of the U.S. Constitution.

Similarly to Harvard, the University of North Carolina argued that it follows legal precedent in considering race as one of many factors.

One of the major differences between the two cases is that Harvard is a private university that must follow anti-discrimination laws based on its ability to retrieve federal funding. Meanwhile, the University of North Carolina is a public university that must abide by the U.S. Constitution.

Initially the Court intended to hear an argument for both cases and issue a single decision. But Justice Ketanji Brown Jackson recused herself from the Harvard case because of her ties to the university — she attended Harvard College and Harvard Law School, served on a governing board that is similar to a board of trustees and has a daughter who attends the university. That led to Brown Jackson only hearing the University of North Carolina case and the two cases being separated.

At the heart of the court’s oral arguments was the question of whether colleges are permitted to consider race when making admissions decisions.

Two theories

Emily Berman, a law professor at the University of Houston, explained that the arguments in these cases are based on two theories of how the 14th Amendment should be interpreted.

The first one is that “the 14th Amendment was put into place to ensure that freed slaves were entitled to equality under the law, and therefore the whole point is to ensure the law is not perpetuating historical inequalities,” she said.

Under this theory, if the law is trying to remedy inequalities, affirmative action programs should be treated differently than other kinds of racial discrimination, she said.

The second one is the “color-blind theory of the 14th Amendment, which basically says the 14th Amendment says the government can’t make distinctions based on race,” Berman said. “Those two different interpretations have been around as long as the 14th Amendment has.”

Another relevant discussion during the oral arguments in October was about Justice Sandra Day O’Connor’s opinion in a 2003 case when she wrote, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest [in diversity] approved today.”

Justices debated whether there should be an ending date for race-based policies and when would colleges perceive to have achieved “enough diversity.”

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