Supreme Court Strikes Down Affirmative Action in College Admissions

• The court's conservative majority united to strike down the consideration of race in college admissions.
• The court issued one comprehensive ruling for two cases involving the University of North Carolina and Harvard University.
• Universities will no longer be able to institute affirmative action policies as they had been for decades.

The U.S. Supreme Court on Thursday ruled that the consideration of an applicant's race in college admissions is unlawful, reversing decades of precedent.

Supreme Court justices ruled against race-conscious admissions, also referred to as affirmative action, in a 6-3 decision that fell along ideological lines. The court issued one comprehensive ruling for two cases involving the University of North Carolina (UNC) and Harvard University.

Chief Justice John Roberts delivered the majority opinion. He was joined by conservative-leaning justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

Justice Sonia Sotomayor wrote the dissenting opinion. She was joined by fellow liberal-leaning justices Elena Kagan and Ketanji Brown Jackson in the UNC decision. Jackson recused herself from the Harvard University decision due to her ties to the institution.

The court's rebuke of race-conscious admissions was clear: Both schools' admissions programs violate the Equal Protection Clause of the 14th Amendment.

"Eliminating racial discrimination means eliminating all of it," reads the court's opinion.

Critically, the court specified that universities may continue to consider an applicant's race in any required essays if that applicant's race is integral to the student's journey and character. For example, a Black applicant can write about how they had to overcome obstacles specific to their race, and a university can weigh that experience in this case.

"Nothing prohibits universities from considering an applicant's discussion of how race affected the applicant's life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university," reads the opinion.

The court's main issue is with weighing one student's application above another's based on race alone.

"College admissions are zero-sum, and a benefit provided to some applicants but not to others necessarily advantages the former at the expense of the latter," the court said.

The majority opinion added that the two schools needed to attach a clear goal to their race-conscious admissions policies. Past Supreme Court decisions required universities to use affirmative action only to pursue a specific diversity goal, but both universities in these cases failed to define "a logical end point."

"The universities' main response to these criticisms is 'trust us,'" the court wrote. "Respondents have failed to present an exceedingly persuasive justification for separating students on the basis of race that is measurable and concrete enough to permit judicial review, as the Equal Protection Clause requires."

Sotomayor Dissent Discusses Inequality

Justice Sotomayor authored an expansive dissenting opinion grounded in the idea that racial inequality is not a concept of the past, but something that still permeates the country.

Black and Hispanic children are more likely to go to underfunded schools, thus disadvantaging them in college admissions, Sotomayor observed.

Affirmative action, she argued, helped legally level the playing field.

"What was true in the 1860s, and again in 1954, is true today: Equality requires acknowledgment of inequality," Sotomayor wrote.

It's because of this that the court has repeatedly ruled in favor of allowing higher education institutions to consider race in admissions. The 14th Amendment, she argued, did not advocate for race-blind policies, but instead allowed for policies that brought equality.

This latest decision, Sotomayor wrote, erases 50 years of precedent that established this.

"The [Supreme] Court's precedents were correctly decided, the opinion today is not workable and creates serious equal protection problems," she stated. "At bottom, without any new factual or legal justification, the court overrides its longstanding holding that diversity in higher education is of compelling value."

She also takes issue with the majority opinion's insistence that UNC and Harvard erred in failing to define "a logical end point."

"Institutions cannot predict the future," Sotomayor wrote. "Speculating about a day when consideration of race will become unnecessary is arbitrary at best and frivolous at worst. There is no constitutional duty to engage in that type of shallow guesswork."

Affirmative Action at the Supreme Court

The Supreme Court heard oral arguments for two separate cases relating to affirmative action on Oct. 31, 2022.

Conservative nonprofit Students for Fair Admissions brought cases against UNC and Harvard University. The court originally combined the two cases, but it later decoupled them to allow Justice Jackson to recuse herself from the Harvard case due to her recent ties to the university.

This is the court's sixth declaration on race-conscious admission practices. The issue first appeared before the court in 1978 in the case Regents of the University of California v. Bakke. The court issued two additional decisions in 2003, one in 2013, and most recently in 2016.

In that 2016 ruling, the court upheld an affirmative action program at the University of Texas, concluding for the third time that educational diversity justifies the consideration of race as one factor in admission decisions.

Race and College Admissions

Some individual states have bans on the use of race in admissions. Those states include:

• Arizona
• California
• Florida
• Idaho
• Michigan
• Nebraska
• New Hampshire
• Oklahoma
• Washington

Overall, using race in college admissions isn’t terribly common. In a 2019 survey from the National Association for College Admission Counseling, only 24.6% said race and ethnicity have a "considerable" or "moderate" influence on admission decisions. Meanwhile, 58.4% said race and ethnicity have "no influence."

Nonetheless, affirmative action has been a hot-button topic in recent years, and one without a clear consensus.

A BestColleges survey of over 1,000 prospective and current undergraduate and graduate students in October 2022 found that 37% of respondents support affirmative action, while 35% do not. Democratic were more likely to support affirmative action (42%) than Republican students (38%).