The Supreme Court on Affirmative Action: The Decision, Its Context, and Future Impact

On Thursday June 29, 2023, the US Supreme Court effectively overturned decades of legal precedent and declared that it was unconstitutional for colleges and universities to admit students based on their race. The Justices were divided 6 to 3 in the ruling which came in response to two separate but similar cases (Students for Fair Admissions v. President and Fellows of Harvard, and Students for Fair Admissions v. University of North Carolina). In both cases, the challenge to affirmative action was spearheaded by Students for Fair Admissions, a nonprofit organization whose mission is to challenge the use of race and ethnicity as factors used to grant or deny admission to students applying to competitive universities. In this post we’ll explore the justices’ opinions and opposing viewpoints, look at the decision in the context of legal precedents and affirmative action, and consider some possible future impacts.

A key pillar in the Court’s argument against affirmative action was the Equal Protection clause of the 14th Amendment to the US Constitution. The justices who ruled for the plaintiff argued that the schools’ use of race in admissions violated the 14th Amendment. 

Justice John Roberts wrote the majority opinion in both cases, and supported the ban on race-based admissions, along with justices Thomas, Alito, Gorsuch, Kavanaugh, and Coney Barrett. 

Sotomayor wrote the dissenting opinion in both cases, and supported the schools’ use of race-based admissions, as did justice Kagan and Jackson (with justice Jackson, a Harvard graduate, recusing herself in the Harvard case).

The Ruling and Its Context

Many elite institutions of higher education have a checkered history when it comes to race and discriminatory admissions’ practices. The Supreme Court’s recent ruling ending affirmative action for college admissions practices fits into a long history of contested admissions practices, especially when it comes to the country’s most selective and coveted universities.

In his book The Chosen, Jerome Karabel, a professor of Sociology at UC Berkeley chronicles the extent to which some of America’s elite universities systematically excluded African Americans, Jews, and other groups, in addition to women of all races for many decades after their founding. Karabel’s book also deconstructs some of the social myths surrounding admissions and academic merit at the elite schools.

Over the past 50 years or so, many of the same institutions have become more inclusive and have developed holistic admissions policies that use many indicators or criteria (GPA, test scores, personal essays, recommendation letters…) to inform decisions about who gets in and who doesn’t. 

The courts have also, for many decades, left the door open for colleges to include race and ethnicity among other specific indicators used in holistic admissions. The Universities have argued in court that use of racial identifiers serves a compelling public interest because all students benefit from diversity in college environments. 

But race-based affirmative action efforts have also come under fire by anti-affirmative-action activists or have been criticized as unfair by students from over-represented groups, primarily White and Asian, who argue the policies make them victims of unfair discrimination. As a result, campus leaders have regularly come under fire and faced litigation in the courts over the use of racial preferences. 

In short, the nexus between higher education and discrimination in the US is fraught with misdeeds, conflicts, and contradictions. And, with attendance at elite schools being a gateway to social mobility and influence, the stakes of inequity are magnified when it comes to larger social, political, and economic implications, making college admissions policies a flashpoint in the nation’s race and culture wars. So, it’s no surprise that both the Harvard and UNC cases, upon reaching the Supreme Court, were closely watched by campus leaders and by those for and against affirmative action.

On June 29th, 2023, a majority of justices on the High Court reversed past precedent and argued that there were no clear-cut measures of compelling interest for the continued defense of race considerations for admissions. Even more important, race-based preferences were, in these justices’ view, directly at odds with the Equal Protection Clause of the 14th Amendment. 

The landmark ruling marks a milestone in a string of consequential Supreme Court decisions addressing race and education generally, and college admissions specifically, going at least as far back as the famous Brown v. Board of Education case in 1954, in which the high court, for the first time, outlawed race-based segregation in public schools.

The Court’s recent ruling against affirmative action also upends specific precedents going as back as 1978, when the High Court ruled to defend the use of race-based considerations for admissions.

While the landmark decision is disappointing for those who support affirmative, race-conscious admissions practices, it could be argued that the Court’s ruling is the culmination of persistent efforts to challenge affirmative action in court or at the ballot box.

In 1996, for example, California’s voters passed Prop. 209, a state referendum prohibiting preferential admissions treatment based on race, ethnicity, or gender.

 In 2003, the US Supreme Court ruled against a point-based affirmative action admissions practice (Gratz vs. Bollinger) but then, in a separate case, a divided Supreme Court narrowly approved a holistic use of race-conscious admissions at the University of Michigan Law School (Grutter vs. Bollinger), lending support to the university’s assertions that maintaining a diverse student body had a compelling educational value for all students.

In 2006, however, voters in Michigan rejected the decree of the High Court, voting to ban race-based admissions practices across all of its public universities.

And in 2016 (Fisher vs. University of Texas), the Supreme Court reaffirmed earlier precedent for promoting campus diversity as an educational benefit for all students with Justice Kennedy writing:  “the compelling interest that justifies consideration of race in college admission is not an interest in enrolling a certain number of minority students, but an interest in obtaining the educational benefits that flow from student body diversity.” 

This week, the Supreme Court took a different tack and broadly rejected the idea of using race considerations in any broad admissions context, citing an inherent disadvantage or prejudice for other applicants of non-promoted races that makes the practice inconsistent with the Equal Protection Clause of the 14th Amendment.

Whichever side of the debate you’re on, the six-member majority in the ruling made clear that race-conscious policies are not without their own complicating factors when it comes to ideals of equity and equal treatment. It has been widely noted, for example, that many Asian students supported the suits because the race-based policies designed to recruit more Black and Hispanic students could come at the expense of qualified White and Asian students and might even involve the use of negative ethnic stereotypes that unfairly disadvantaged Asian applicants. 

These complex and subjective dynamics plaguing college admissions pit efforts to achieve greater racial equity against the very principles of equality and fairness that affirmative action policies seek to promote.

At the same time, some would argue, these constitutional principles of fairness, by definition, are not as “fair” in practice as they are in principle, failing as they do to account for entrenched racial and socio-economic barriers to equal opportunity. 

Ironically, for decades, the 14th Amendment notwithstanding, many of the nation’s most prestigious colleges and universities repeatedly used quotas for discriminatory ends in order to exclude from campus life or limit admissions for non-white Protestant males, and virtually all women.

Nevertheless, race-conscious approaches for addressing racial inequities, despite their demonstrated effectiveness, can be perceived, or even experienced, as running counter to basic principles of fairness and of equal rights and protections for all.

So, while the use of race-based college admissions has been upheld in recent decades, it has also been narrowed and challenged, and this week’s landmark ruling seems to mark a political tipping point, putting a more definitive end to the controversial use of race as a broad marker for preferential admissions policies at US colleges and universities.

Opposing Viewpoints Highlighted by the Recent Court Ruling

Chief Justice Roberts, who wrote the majority opinion governing both disputes, underscored that the policies at Harvard and UNC were in fundamental conflict with the principle of equal protection guaranteed by the 14th Amendment.

In particular, Roberts argued that the admissions policies at Harvard and UNC were unconstitutional because they “unavoidably employ race in a negative manner” and “involve racial stereotyping” since preferential treatment of one race or races results in unfair disadvantages and outcomes for other applicants, based solely on their race:

Penning the dissenting opinion, Justice Sotomayor noted that past Supreme Court rulings wisely sought to uphold programs designed to promote and institutionalize the goals of inclusion and social justice against the backdrop of what she called “an endemically segregated society.”

Also, both Justice Jackson and Justice Sotomayor implied, in dissenting opinions, that the Majority was hypocritical in using the 14th Amendment as a basis for striking down institutional efforts to combat persistent social inequities, given that the same Amendment has long been championed as a legal pillar in social movements promoting racial justice and inclusion. Sotomayor, writing the Minority opinion, laments this irony: “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.”

Affirmative Action and Racial Fault Lines in America

In their opinions, Roberts and Sotomayor clearly rebuked each others’ positions, revealing how divided Americans are on the issue of affirmative action, over how to promote fairness in college admissions practices, and over how to define and promote ethnic and racial diversity within the broad outlines of what is traditionally presumed to be a fundamentally competitive and merit-based process.

A recent Pew Research Center poll found that about 50% of US adults disapprove of selective colleges and universities taking prospective students’ racial and ethnic backgrounds into account when making admissions decisions. 33% approve of colleges considering race and ethnicity to increase diversity at the schools, while 16% are not sure.

The Justices' opposing arguments, rather than highlighting a common way forward, would lead us to believe that efforts to promote diversity, on the one hand, and principles of equal protection, on the other, are fundamentally at odds with one another. We are asked to take the side of the principle of colorblind racial equality enshrined in the constitution (the ruling opinion) or the side of the struggle to combat the lived reality of racial inequity evident in history and society (the dissenting opinion).

In her dissent, Sotomayor called the principle of colorblindness invoked by the Majority “superficial” given a lived social context where “race has always mattered and continues to matter,” and argues that ignoring inequities is not a prescription for addressing them.

Justice Roberts, however, writing for the majority, fails to see how the practices in question can be squared with any fundamental definition of fairness when they inherently use the principle of racial equity as a compelling interest for defending admissions practices that disadvantage other applicants based on their race: “While the dissent would certainly not permit university programs that discriminated against Black and Latino applicants, it is perfectly willing to let the programs here continue. In its view, this Court is supposed to tell state actors when they have picked the right races to benefit.”

Immediate Impacts of the Ruling

Based on what we know from past bans on race-based admissions in certain states, many colleges and universities will find it much harder to maintain racially diverse campuses as admissions for certain minorities decline steeply.

For example, when California voters passed Proposition 209 back in 1996, banning preferential treatment for admissions based on race, ethnicity, or gender, the University of California saw a steep decline in enrollment numbers for Black and Latino students — a 40% decline at the two most popular campuses, UCLA and UCB.

School officials in California point to other impacts as well, such as the impact on lifetime earnings of the minority students not attending a top college, and the fact that even highly qualified minority students are discouraged from applying to top schools if they feel they will be isolated from “same race peers.” 

And, some twenty-five years after Prop. 209 was passed, and despite alternative outreach efforts and investments, UC officials contend that the data show they are still unable to achieve pre-Prop. 209 levels of diversity on UC campuses, especially in terms of successfully recruiting applicants from the lowest income brackets.

When voters in Michigan banned all affirmative action at the state’s public universities in 2006, there were similar impacts, with significant declines in enrollment for African Americans and Native Americans. And, no alternative approach adopted after the elimination of race-based admissions has succeeded in allowing school officials to achieve a truly diverse and inclusive student body, despite robust efforts and expenditures.

Longer-Term Implications for Colleges and the Nation

Now that the decision has been handed down, many Americans will be monitoring how it more widely impacts larger struggles related to diversity and inclusion.

For one thing it is certain there will be a continued struggle to make campuses more diverse. In fact, many of the same institutions of higher learning that are trying to defend their efforts to promote diversity, are also struggling to reckon with their racist pasts and the ghosts related to slavery, slave holding, and racial discrimination that haunt their institutions into the present.

So no doubt, the importance of promoting diversity in campus life and securing greater equity in US society continue to grow in urgency even as Americans struggle to agree on how best to achieve and live out the ideals of a diverse and free nation in which all citizens enjoy the fundamental and uncompromising protections guaranteed by the Constitution.

Future Flashpoints and Court Cases: Proxies for Race in Admissions, Preferential Financial Aid, Legacy Admissions, and DEI in Higher Ed and Beyond

Clearly, this week’s Supreme Court ruling is only one turn on a long and rocky road of racial conflict, healing, and reparation in the US. Now, in the aftermath of the Court’s rejection of race-conscious admission policies, policy advocates are staking out new battlelines.

Proponents of affirmative action will continue their struggle, by other means, in the larger struggle for social justice. As Justice Sotomayor proclaimed: “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.”

Second, opponents of race-based admissions will remain suspicious that unfair practices may emerge in new guises as campuses adapt to the new legal landscape. This will mean ongoing vigilance no doubt with regard to admissions practices, and ongoing threats of more litigation.

One clear battleline will be around the use of so-called proxies for racial identifiers, such as indicators related to socio-economic status, including family income status or economic indicators associated with students’ home community or high school.

For example, the Court’s majority did give colleges leeway to consider race among other circumstantial factors impacting or shaping individuals’ experiences. This legal standard should mean that admissions officers can consider individual experiences related to overcoming discrimination or to persevering in the face of racial prejudices, within a holistic framework for selective admissions.

In the wake of the ruling, the Biden Administration signaled an interest in this approach, publicly urging universities to consider factors related to personal adversities “when selecting among qualified applicants, including the financial means of a student or their family; where a student grew up and went to high school; and personal experiences of hardship or discrimination, including racial discrimination, that a student may have faced.”

On the flipside, some conservative action groups are demanding adherence to the new guidelines on admissions, and threatening new lawsuits. One group, America First, not only “warned” officials at Harvard’s School of Law to desist from making admissions decisions based on race, national origin, or sex, but also insisted that so-called proxies for race were also off limits and incompatible with a merit-based principle of fairness:

According to reporting from Reuters, UC Berkeley Law School Dean Erwin Chemerinsky contends that the America First warning goes too far in terms of its interpretation of the recent Court ruling but anticipates the legal fate of income-based and other biographical guidelines will be decided by new rounds of litigation in the coming years.

For now at least, it’s likely that many schools will seek to reach diversity goals or promote diversity-related interests by suppressing race considerations and replacing them with socioeconomic and social hardship indexes.

For example, the UC Davis Medical School is widely recognized for making significant strides over the past ten to fifteen years in promoting a highly diverse graduate pool in a profession that badly needs more diverse representation. The school has done so without resorting to race-conscious policies and by “shifting admissions criteria away…from MCAT scores and GPAs to characteristics like grit, resilience, and perseverance.”

In addition, the fallout is not likely to be limited to just admissions as such, but may impact other support mechanisms based on racial categories.

For example, the University of Missouri system has also announced it will end the use of race identifiers in financial aid and need-based scholarship programs. 

In terms of lawsuits and threatened lawsuits, it’s also not just conservative groups leading the charge. The court’s spotlight on merit and equity in admissions has triggered lawsuits challenging other forms of preferential admissions that disadvantage minorities.

For example, the nonprofit Lawyers for Civil Rights, a nonprofit legal group that had been supporting schools’ ability to implement affirmative action policies, is now suing Harvard over its legacy admissions practices, arguing that legacy admissions practices at Harvard confer preferential treatment to applicants without regard for merit and at a disadvantage to students of color.

In fact, in the wake of the Court ruling against affirmative action, editorial writers and policy advocates began to cry foul, noting that the Court’s ruling leaves other forms of “affirmative action” intact. Vox News ran an editorial on July 6, 2023 with the headline: “Affirmative Action for White College Applicants is Still Here.” 

Katharine Meyer, a fellow with the Brown Center on Education Policy at The Brookings Institution, put it this way:

It will also be interesting to see how colleges and universities forge future arguments about the compelling interests served by promoting greater diversity on their campuses. Will they continue to emphasize the academic benefits of diversity, or focus on a broader metric of compelling interest? For example, in addition to many prominent school officials, dozens of business leaders also petitioned the justices to uphold race-based admissions, urging them to weigh the social and economic benefits of having an inclusive and diverse pool of skilled and educated workers.

In fact, the impacts will extend beyond college and into the larger professional arena.

Business news outlets have noted that another impact of ending race-based admissions will be that “fewer people from underrepresented groups will make their way into jobs and management roles,” making it harder for companies to meet diversity goals.

Furthermore, while cautioning that the ruling does not establish explicit legal precedent for businesses, some experts also foresee the recent landmark ruling impacting a much broader arena of affirmative action policies in the future.  For example, the justices’ arguments may propel new challenges and fuel future debates around employment-based affirmative action or other broad DEI initiatives in the workplace.

Paradoxes and Contradictions

The divided opinions on the High Court, and those in our political discourse, reveal some strident disagreements and contradictions when it comes to how to achieve a more perfect union. 

Across arguments on both sides, however, the ideals of fairness and equal protection remain broad and binding pillars of American life that may offer a bridge to collective progress toward justice and greater unity.

In her dissenting opinion, Justice Sotomayor made a nod to the innate nobility of the nation’s historical march toward racial equality and justice. 

But, the justices in the majority camp also anchored their arguments in principles of fairness and equality, with Justice Thomas arguing that the nation’s race problem can never be overcome by social programs based on race, but that this progress can only be realized by looking beyond racial divisions.

Justice Roberts, likewise, focused on the problems of pitting one race, any race, regardless of other factors, against another race, and the constitutional problem posed by this in light of the 14th Amendment.

These contradictions also impact admissions policies. For example, after California voters banned race-based admissions, the University of California established a policy allowing for direct admissions from state high schools, offering the top 9% of seniors at each respective public high school a ticket to at least one UC campus in order to foster more diverse campuses. 

More recently, a similar bill is being pushed by Republicans in the Wisconsin legislature. And while the bill would implement direct admissions for the top 4% of high school seniors in each district, the bill’s supporters say the goal is not to promote diversity but to ensure that the students excelling academically are getting admitted in accordance with academic merit.

In Wisconsin the bill’s supporters want a less “holistic” and more transparent, merit-based approach:

While the proponents of affirmative action voice concerns about the empirical realities of systemic segregation and inequity, opponents of affirmative action cast their actions as promoting fairness based on individual merit.

Final Thoughts

The paradoxes highlighted in the opposing viewpoints on the Court will likely shape new debates and lawsuits, but this fact should also encourage us to reflect on other core American values: such as pragmatism and striving to find unity from diversity.

Ultimately, fairness and equality seem to adhere as guiding principles that bridge the divisions on the High Court as well as those across the nation when it comes to race-conscious admissions practices. 

What now?

Despite the larger contradictions, Representative Murphy may have a point worth further consideration: How can we live out a principled notion of universal equity, tacitly consent to a merit-based system, and also actively respond to the fact of chronic underrepresentation for some racial communities without focusing more attention on helping more students, and all students, excel academically earlier in their educational journeys?

In other words, should so many battlelines for diversity at top schools be drawn around equal access to college, or should more attention be paid to ensuring more students achieve equitable access to college readiness, before they’re applying to college*?*

That said, without diversity at top national and top state schools — which serve as critical gateways to opportunity and prosperity — the nation can’t pretend to be colorblind or hope to overcome critical racial inequities.

Likewise, abstract concepts of merit and fairness also need to be examined in the light of real-life economic disparities and other social and historical disadvantages, including hidden systems of preference and privilege, such as legacy-based admissions preferences, to name just one example.

Finally, we must also think pragmatically about diversity. It does seem hard to imagine that we will benefit collectively by failing to promote diversity on our college campuses, given the pivotal role college life plays in our nation formatively, academically, and in conferring future benefits and opportunities for careers and salaries.

 As UC Berkeley Chancellor Carol Christ put it:

Whatever our personal views about affirmative action, we all should seek ways to help build a world that honors diversity and fairness and actively pursues efforts to create greater educational opportunities for all individuals.

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