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

Updatedd June 29, 2023  7:52 PM ET

Nina Totenberg

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.

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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.

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„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.

How the Supreme Court has ruled in the past about affirmative action
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.“ (…)


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