Supreme Court Rules Against Affirmative Action

The supreme court struck down the use of race in affirmative action in college admissions at Harvard and the University of North Carolina in a 6-3 vote. It ruled that the use of race by the two universities to promote diversity violated of the equal protection clause, “not permitting any distinctions of law based on race or color,” of the 14th Amendment. The ruling will have a direct effect on colleges: race may no longer be considered as a “plus” factor, in the admissions process.

In the wake of the ruling, many educational institutions are reaccessing all of the preferences they give during the admissions process to promote “diversity.” The decision may have large implications for race-based programs in educational institutions, corporate hiring practices, philanthropy, government contracting and diversity efforts.  Many of the graduates from selective schools become political leaders, professionals, judges and high earners in society.

The majority argued that the only legal admission policies are color-blind.  The dissenters countered with the US is a racial society with a long history of discrimination that continues to this day. By removing race from college admission, the supreme court overturned 45 years of precedent. Students can still mention race in personal essays covering lived experiences.

Other forms of affirmative action such as gender, athletics, leadership, music, art and legacy (donors, alumni and children of faculty) can continue. They also allowed affirmative action to continue at military academies. 

You can read the ruling here: Students for Fair Admissions, Inc. v. President and Fellows of Harvard College

The ruling

Writing for the majority, Chief Justice Roberts said…

”Because Harvard’s and UNC’s admissions 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, those admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause.”

The decision by the conservative supreme court majority overturns 45 years of precedent on affirmative action.  Eliminating Affirmative action, like restricting, abortion, has long been a goal of conservatives. Conservatives gained a three supreme court seats under President Donald Trump.  The court continued to allow the use of gender, legacy (donor, alumni and faculty) and athletic status in admission policies. It also exempted the military in the interests of national security.

Voting to overturn the current law, in the 6-3 ruling were the court’s conservative block: Thomas, Alito, Roberts, Gorsuch, Cavanaugh, and Barrett. Voting to dissent were Sotomayor, Brown-Jackson and Kagan.

Joe Biden and many civil rights groups criticized the decision while conservative groups were supportive. President Trump and conservatives praised the decision. 

Media was split largely based on ideology with conservative media outlets praising the decision and liberal press disagreeing. Conservative outlets were careful not to gloat instead focusing on Asian American success.

Black media was skeptical of the supreme court and Clarence Thomas. Black institutions released press announcements condemning the ruling. (Howard University)

Ruling Details

The majority opinion was written by Chief Judge Roberts, with Thomas, Gorsuch writing concurring opinions. Sotomayor and Jackson wrote separate dissenting opinions.

The supreme court had previously decided that race conscious admissions were legal in the context of a holistic process as recently as 2016. The Court’s decision is contrary to 45 years of precedent established in prior Supreme Court decisions: Bakke, Grutter and Fisher I and II.

However, the Court’s ruling still allows colleges to consider how race has affected a student’s life as expressed in a personal essay.   

The court also did not explicitly overrule Grutter v. Bollinger which allows the consideration of race as one of many factors in admissions.  So, other categories such as gender, athletics, music, and legacy can still be considered.  

The cases were brought by Students For Fair Admission (SFFA). The group was formed specifically to challenge affirmative action in college admissions.  It is backed by conservative activist Edward Blum who formed the group in 2014

The ruling does not address race-conscious policies in any other contexts, such as K-12 education, the workplace, or government programs. However, it is widely expected that lawyers will challenge any initiative or program that uses facial consideration is almost any setting.

Both Thomas and Sotomayor, the two justices who have acknowledged affirmative action played a role in their admissions to college and law school, took the unusual step of reading summaries of their opinions aloud in the courtroom.

Details by juror

Justice Roberts

The majority option states…

”Because Harvard’s and UNC’s admissions 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, those admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause.”

Chief Justice John Roberts said that for too long universities have “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. Our constitutional history does not tolerate that choice.”

Justice Thomas

Thomas’s opinion is based on the theory of a “color-blind” constitution. He also attacks the Dissent of Justice Jackson

Justice Clarence Thomas — the nation’s second Black justice, who had long called for an end to affirmative action — wrote that the decision “sees the universities’ admissions policies for what they are: rudderless, race-based preferences designed to ensure a particular racial mix in their entering classes.”

“Today’s opinion for the Court reaffirms the need for such a close remedial fit, (…).  Without such guardrails, the Fourteenth Amendment would become self-defeating, promising a Nation based on the equality ideal but yielding a quota- and a caste-ridden society steeped in race-based discrimination.”

Thomas also inserted his famous quote from Adarand: “These policies may harm even those who succeed academically. I have long believed that large racial preferences in college admissions ‘stamp’ Blacks and Hispanics with a badge of inferiority.”

Finally, he wrote… “The Court’s opinion rightly makes clear that Grutter is, for all intents and purposes, overruled. 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. Those policies fly in the face of our colorblind Constitution and our Nation’s equality ideal. In short, they are plainly—and boldly—unconstitutional.”

Justice Gorsuch

In his concurring, Gorsuch said, “I write to emphasize that Title VI of the Civil Rights Act of 1964 does not tolerate the practice of deciding which applicants to admit or reject based in part on race.”

Basically, He wants to open the door for suits against any using any sort of racial preference in any institution receiving federal funds.

Justice Sotomayor

Justice Sotomayor wrote the dissenting opinion for Jackson and Kagan. She focused on why admission admissions policies that consider a broad set of factors including race are legal under the equal protection clause. She also argued against racial preferences violating Title VI of the civil rights act.

Sotomayor writing for the dissent, concluded: “The Equal Protection Clause of the Fourteenth Amendment enshrines a guarantee of racial equality. The Court long ago concluded that this guarantee can be enforced through race-conscious means in a society that is not, and has never been, colorblind.”

Sotomayor said the decision “rolls back decades of precedent and momentous progress.”

She noted that “Dozens of amici from nearly every sector of society agree that the absence of race-conscious college admissions will decrease the pipeline of racially diverse college graduates to crucial professions.”

“Today’s decision further entrenches racial inequality by making these pipelines to leadership roles less diverse. A college degree, particularly from an elite institution, carries with it the benefit of powerful networks and the opportunity for socio-economic mobility. Admission to college is therefore often the entry ticket to top jobs in workplaces where important decisions are made.”

In conclusion, she writes, “By ending race-conscious college admissions, this Court closes the door of opportunity that the Court’s precedent helped open to young students of every race. It creates a leadership pipeline that is less diverse than our increasingly diverse society, reserving “positions of influence, affluence, and prestige in America” for a predominantly white pool of college graduates (Bakke). At its core, today’s decision exacerbates segregation and diminishes the inclusivity of our Nation’s institutions in service of superficial neutrality that promotes indifference to inequality and ignores the reality of race.”

“Today, this Court overrules decades of precedent and imposes a superficial rule of race blindness on the Nation. The devastating impact of this decision cannot be overstated. 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.”

“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.”

Justice Jackson

“Gulf-sized race-based gaps exist with respect to the health, wealth, and well-being of American citizens.”

“Our country has never been colorblind.”

“Rather than leaving well enough alone, today, the majority is having none of it. Turning back the clock (to a time before the legal arguments and evidence establishing the soundness of UNC’s holistic admissions approach existed), the Court indulges those who either do not know our Na­tion’s history or long to repeat it. Simply put, the race-blind admissions stance the Court mandates from this day for­ward is unmoored from critical real-life circumstances.

“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. And having so detached itself from this country’s actual past and present experiences, the Court has now been lured into interfering with the crucial work that UNC and other institutions of higher learning are doing to solve America’s real-world problems.

No one benefits from ignorance. Although formal race-linked legal barriers are gone, race still matters to the lived experiences of all Americans in innumerable ways, and today’s ruling makes things worse, not better. The best that can be said of the majority’s perspective is that it proceeds (ostrich-like) from the hope that preventing consideration of race will end racism. But if that is its motivation, the majority proceeds in vain. If the colleges of this country are required to ignore a thing that matters, it will not just go away. It will take longer for racism to leave us. And, ultimately, ignoring race just makes it matter more.”

“Also, by latching onto arbitrary timelines and professing insecurity about missing metrics, the Court sidesteps unrefuted proof of the compelling benefits of holistic admissions programs that factor in race (hard to do, for there is plenty), simply proceeding as if no such evidence exists. Then, ultimately, the Court surges to vindicate equality, but Don Quixote style—pitifully perceiving itself as the sole vanguard of legal high ground when, in reality, its perspective is not constitutionally compelled and will hamper the best judgments of our world-class educational institutions about who they need to bring onto their campuses right now to benefit every American, no matter their race.”


We can project from California’s experience banning affirmative action, that Black and Hispanic enrollment at selective schools is expected to drop by at least 40% for a five-to-fifteen-year period.  In 1996, California passed Proposition 209 making affirmation action illegal. Enrollments of underrepresented minorities at the most selective public schools, UCLA and Berkeley, dropped by 40% shortly afterward. Hispanic enrollment recovered 20 years later. Black enrollment has never recovered.

We can also expect top-performing underrepresented minorities to view UCLA and Berkley as unwelcoming and shift down to less selective and more diverse schools.

Today, more than half of California’s public high school graduates identified as Hispanic, but just 25% of freshmen at all University of California schools and only 15% of freshmen at UCLA and Berkeley are Latino.

Harvard and UNC are expected to comply with the ruling. Selective schools are expected to continue to promote diversity as good for their students and society.  Admissions policy will shift to considering income, location and personal essays. They will de-emphasize standardized test scores and instead rely on high school grades or high school rank in class.

We can expect private selective schools to innovate in their approaches to diversity and fill the gap faster. Private schools with money are expected to increase individual assessments and out-reach efforts. Public schools, like those in California, will remove race from any consideration.  They will experience the biggest drop-off. Some schools are considering other options such as reducing legacy admissions (donors, alumni and faculty) and increasing financial aid for poorer students. Harvard has been resisting changing legacy admissions.

Long-term we can expect to see a less diverse professional workforce in corporations, professions and government.  Major corporations will see a more limited “pipeline” of Black and Hispanic candidates.  Colleges will have a less diverse staff. And they may even be “bidding wars” for Minority “rockstar” graduates. The number of minority professionals will decrease which will also depress the income for the total community.

The common college application will either eliminate race from the demographic section or make race optional

Many have suggested replacing race with zip code, high school, income, an ancestor who was a slave, or other factors. Several noted scholars and think tanks believe there is no “good” substitute for race in college admissions(Georgetown).

Perhaps, the best recommendation comes from the California reparations task force which recommends using proven lineage to a slave and identifying as a Black American.

Comments and Politics

Thomas and Sotomayor gave rare oral presentations of their opinion summaries which rarely happens. Thomas also directly rebutted judge Jackson’s points in his opinion.

Former President Trump said the ruling is “a great day for America. People with extraordinary ability and everything else necessary for success, including future greatness for our Country, are finally being rewarded,”

Former President Obama said in a statement that affirmative action “allowed generations of students like Michelle and me to prove we belonged. Now it’s up to all of us to give young people the opportunities they deserve — and help students everywhere benefit from new perspectives.”

History of Affirmative Action and supreme court rulings on Affirmative Action

Bakke (1978) – Quotas are illegal

Grutter – Diversity is good and permitted. Colleges have a “compelling interest.” Only a plus points can be added. 25-year limit.

Fisher v. University of Texas (2013) – (7-1 decision) Race is permissible if it passes “strict scrutiny.” A critical mass of diverse students is needed.  Ginsburg in dissent said race should be explicitly included in admissions decisions.

Fisher II (2016)  (4-3 decision) Race is permissible and Texas passed the strict scrutiny standard.

What is strict constitutional scrutiny?

“Strict Scrutiny” decides the limited times when discrimination is legal under the US Constitution.

1. It must serve a “Compelling state interest” in using discrimination to remedy prior action.

2. The remedy must be “narrowly tailored.”

3. Executed in the “Least restrictive” possible way. Executed with the least effect on the “status quo.”

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