Supreme Court strikes down affirmative action programs in college admissions - SCOTUSblog
By: Amy Howeon (SCOTUSblog)
S E E D E D C O N T E N T
By Amy Howe
on Jun 29, 2023at 12:31 pm Harvard College in Cambridge, Mass. (Jay Yuan via Shutterstock) Share
This article was updated on June 29 at 4:09 p.m.
In a historic decision, the Supreme Court severely limited, if not effectively ended, the use of affirmative action in college admissions on Thursday. By a vote of 6-3, the justices ruled that the admissions programs used by the University of North Carolina and Harvard College violate the Constitution's equal protection clause, which bars racial discrimination by government entities.
Writing for the majority, Chief Justice John Roberts explained that college admissions programs can consider race merely to allow an applicant to explain how their race influenced their character in a way that would have a concrete effect on the university. But a student "must be treated based on his or her experiences as an individual — not on the basis of race," Roberts wrote. The majority effectively, though not explicitly, overruled its 2003 decision in Grutter v. Bollinger , in which the court upheld the University of Michigan Law School's consideration of race "as one factor among many, in an effort to assemble a student body that is diverse in ways broader than race." Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett joined the Roberts opinion.
Justice Sonia Sotomayor - a graduate of Princeton and Yale Law School who once called herself "the perfect affirmative action baby" - dissented, in an opinion that was joined by Justices Elena Kagan and Ketanji Brown Jackson. Sotomayor emphasized that the majority's decision had rolled "back decades of precedent and momentous progress" and "cement[ed] a superficial rule of colorblindness as a constitutional principle in an endemically segregated society."
Thursday's ruling was the latest in a series of challenges to the role of race in university admissions. In both the North Carolina and Harvard cases, the plaintiffs had asked the justices to overrule Grutter . In her opinion for the majority in that case, Justice Sandra Day O'Connor reaffirmed that "student body diversity is a compelling state interest that can justify the use of race in university admissions," but she warned that race-conscious admissions policies should not last forever. In 25 years, she suggested, "the use of racial preferences will no longer be necessary to further the interest" in diversity.
Eleven years after the court's decision in Grutter , a group called Students for Fair Admissions filed the North Carolina and Harvard cases in federal court. The group was founded by Edward Blum, a conservative activist who had also spearheaded a challenge to the admissions policy at the University of Texas at Austin as well as to Shelby County v. Holder , the 2013 case that narrowed the Voting Rights Act.
After the lower courts upheld both North Carolina's and Harvard's admissions policies, the Blum's group came to the Supreme Court, where it asked the justices to overrule their decision in Grutter and bar the consideration of race in university admissions altogether. The court that agreed to take up both cases last year was a very different, and much more conservative, court than the one that had upheld the UT-Austin policy seven years before. Justice Anthony Kennedy, the author of the UT-Austin decision, retired in 2018 and was replaced by Justice Brett Kavanaugh, while Justice Ruth Bader Ginsburg was succeeded by Justice Amy Coney Barrett.
In a 40-page opinion that addressed both the Harvard and UNC cases, Roberts began with a review of the Supreme Court's past decisions interpreting the equal protection clause. Those decisions, he concluded, reflect the clause's "core purpose": "doing away with all governmentally imposed discrimination based on race." He emphasized that the Supreme Court had only allowed universities to use race-based admissions programs "within the confines of narrow restrictions." But the Harvard and UNC programs, "however well intentioned and implemented in good faith," Roberts explained, do not comply with those restrictions.
Both programs, Roberts began, consider race as part of their admissions program for commendable goals, such as "training future leaders in the public and private sector" and "promoting the robust exchange of ideas." But those goals are too vague for courts to measure, Roberts reasoned. How, he queried, do courts determine whether future leaders have been sufficiently trained, or "whether the exchange of ideas is 'robust'"? And even if courts could measure them, he continued, how would courts determine whether universities had accomplished those goals, "and when the perilous remedy of racial preferences may cease?"
The programs also use race in a "negative" manner, Roberts next explained, despite the Supreme Court's admonition that "an individual's race may never be used against him in the admissions process." Although both universities contend that an applicant's race is never a negative factor, Roberts wrote, "[c]ollege admissions are zero-sum. A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter." Moreover, Roberts added, the programs also rely on prohibited racial stereotyping - the idea that minority students will always have the same views or perspectives on a particular issue.
Finally, Roberts observed, the Harvard and UNC programs lacked the "logical end point" suggested by Grutter : Both Harvard and UNC acknowledged that their programs do not have a "sunset" date. Indeed, Roberts noted, "UNC suggests that it might soon use race to a greater extent than it currently does."
Roberts stressed that the court's decision did not bar universities from ever considering race on a case-by-case basis. Schools, he indicated, can consider "an applicant's discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise." However, he cautioned, a "benefit to a student who overcame racial discrimination, for example, must be tied to that student's courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student's unique ability to contribute to the university." By contrast, he complained, programs like the ones used by Harvard and UNC 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."
The majority's decision left the door open for service academies like the U.S. Naval Academy and West Point to continue to use, at least for now, race-conscious admissions programs. The Biden administration, which filed a brief as a "friend of the court" in support of Harvard and UNC, had emphasized that senior military leaders believe that it is important to have a diverse officer corps, which in turn requires the consideration of race for admission to the service academies. But the service academies did not participate in the Harvard and UNC cases and the lower courts did not consider that argument. Therefore, Roberts indicated in a footnote, the Supreme Court did not weigh in on the issue, "in light of the potentially distinct interests that military academies may present."
Thomas filed a concurring opinion and took the relatively rare step of reading a summary of his opinion from the bench. He pushed back against the idea, advanced by Sotomayor in her dissent, that the 14th Amendment "does not impose a blanket ban on race-conscious policies."
But Thomas, who in his memoir discussed the "stigmatizing effects of racial preference" that he felt after he was admitted to Yale Law School in the 1970s under a race-conscious admissions program, was also sharply critical of the UNC and Harvard programs from a practical perspective. Such programs, he argued, "do nothing to increase the overall number of blacks and Hispanics able to access a college education" but instead "simply redistribute individuals" among colleges and universities, "placing some into more competitive institutions than they otherwise would have attended" - and where they may be less likely to succeed academically. And if they do succeed, Thomas wrote, they may still be harmed by the stigma that race-conscious admissions programs create. Rather than solving existing issues of inequality, Thomas argued, these policies themselves divide students and "lead[] to increasing racial polarization and friction."
Kavanaugh wrote his own concurring opinion in which he acknowledged that "racial discrimination still occurs and the effects of past racial discrimination still persist." He observed that other paths, such as federal and state civil rights laws, can "deter and provide remedies for current acts of racial discrimination," while governments and universities can also use race-neutral methods to remedy past discrimination. But he suggested that Thursday's decision - which, he noted, will first apply to the admissions process for the class of 2028 - was consistent with Grutter 's "explicit" 25-year sunset.
Sotomayor's 69-page dissent emphasized that the "limited use of race" by colleges and universities "has helped equalize educational opportunities for all students of every race and background and has improved racial diversity on college campuses." "Although progress has been slow and imperfect," she wrote, "race-conscious college admissions have advanced the Constitution's guarantee of equality and have promoted" Brown v. Board of Education 's "vision of a Nation with more inclusive schools." "The devastating impact of" Thursday's decision, she concluded, "cannot be overstated."
Justice Elena Kagan joined Sotomayor's dissent. Justice Ketanji Brown Jackson, who until last year served on Harvard's board of overseers, recused herself from the Harvard case and therefore joined Sotomayor's dissent as it applied to the UNC case. Jackson also filed a dissent in the UNC case, joined by Sotomayor and Kagan, in which she argued that American society "has never been colorblind." "Given the lengthy history of state-sponsored race-based preferences in America," Jackson wrote, "to say that anyone is now victimized if a college considered whether that legacy of discrimination has unequally advantaged its applicants fails to acknowledge the well-documented 'intergenerational transmission of inequality' that still plagues our citizenry."
Although Thursday's ruling essentially ended the use of race-conscious college admissions programs, the justices could soon consider whether the Constitution bars other efforts to increase diversity, even if those efforts to do not expressly take race into account. In May, the U.S. Court of Appeals for the 4th Circuit upheld the admissions policy at a prestigious Virginia magnet school over a challenge from a parent group, which alleged that although the policy was "race neutral" it nonetheless discriminated against Asian American students. The group is likely to appeal that ruling to the Supreme Court - possibly as early as this summer.
This article was originally published at Howe on the Court.
Posted in Featured, Merits Cases
Cases: Students for Fair Admissions Inc. v. President & Fellows of Harvard College, Students for Fair Admissions, Inc. v. University of North Carolina
Recommended Citation: Amy Howe, Supreme Court strikes down affirmative action programs in college admissions , SCOTUSblog (Jun. 29, 2023, 12:31 PM), https://www.scotusblog.com/2023/06/supreme-court-strikes-down-affirmative-action-programs-in-college-admissions/
Trolling, taunting, spamming, and off topic comments may be removed at the discretion of group mods. NT members that vote up their own comments, repeat comments, or continue to disrupt the conversation risk having all of their comments deleted. Please remember to quote the person(s) to whom you are replying to preserve continuity of this seed. Any use of the phrase "Trump Derangement Syndrome" or the TDS acronym in a comment will be deleted.
Tags
Who is online
556 visitors
This decision leaves a lot unanswered.
1. Chief Justice Roberts
2. A carve out for military schools.
3. Legacy students.
That would seem to me the exact opposite of what SCOTUS is taking away from kids of color.
Would you explain your comment as to why it has served its purpose?
Aren't legacy students a really easy way to get into Harvard.
Why are the Military Schools exempt?
A similar styled "intervention" occurred with the Second Amendment in Heller vs. District of Columbia (though I am not delving any further into the gun case beyond this) when Justice Scalia "comprehensively wrote that guns are free and clear all across America everywhere. . . EXCEPT in places like court houses and churches or "h" just places conservative's don't want them to be -everywhere else its a 'go'!
Conservative Justices again are rolling back legal obstacles against their whims and hold over society's proper growth and development while leaving the door open to promote more of what their "pursuits" are in the law.
It's the same old tired $hit we have come to expect from conservatives EVERYWHERE. They talk with "forked tongues."
By the way, peep this out: Chief Justice Roberts is a 'signal' vote. That is, whenever he gives an assent vote with liberals it is fashionable to expect he will counter that vote with a vote for some possibly hotter issue for conservatives. Judge for yourself/selves if it is done by hook or crook!
Sky is not falling. Don't get in a twist over this. This is a restructuring which in the end will give 'the professional class' either the rope to hang themselves or the path to benefit everyone. As it should be, the choice is theirs as will be the consequences.
Not in a twist over this, I simply asked some questions that seem to be quite contradictory to the decision by SCOTUS.
Well yes and you are correct. Every question is valid. However, the court is contradictory and the pane of glass it stands on is a thin one.
gacy students are students whose parent (s) attended the school. Kids of big donors and athletes on scholarship.
Why would the court address things that aren’t before it? It sounds like the AOC tweet that's being ruthlessly mocked all over the internet.
Who are you addressing your comment to? Or are you talking to yourself?
Address the comment to a commenter or leave the article, pretty simple hope that you can understand it. Additionally, AOC is not part of the article or other comments which of course if totally off topic.
I literally quoted you. Did you not recognize your own writing?
[Deleted]
Of course but you do know if you want to be taken seriously that you ID the person you're responding to. Everyone knows that it seems except you.
Your inability to address me directly is embarrassing, for you. As for hiding out to avoid playing with the big boys, I would never consider you one of the big boys, much more like a little kid and also one that seems to have a problem posting a comment that is on topic.
Keep swinging your bound to get a hit sooner or later, kind of like a blind squirrel.
I read about Thomas and Brown having sharp words for each other.
It's been pretty sharp, one will not be inviting the other to dinner anytime soon.
Personally, i see legacy and big donor purchased admissions, football and basketball scholarships and affirmative action as being conducive to restricting the intelligencing (word coined to be opposite of 'dumbing down') of America. It is the lower levels of education that need fixing so that there isn't a need for preference other than level of ambition, near perfect or perfect scores, intelligence and creative ability no matter what race. What the SCOTUS has done has permitted an ambitious Chinese student with an IQ of 150, perfect or almost perfect scores and creative ability bound to benefit America to not be blocked in favour of one who has neither the intelligence nor creativity to benefit even themselves.
It's good to know that with all your education/experience you feel that those that are helped by AA have neither the intelligence or creativity to benefit even themselves. It's great that you used the old trope.
I'm sure you're educated and intelligent enough to realize that the example I used was to describe a specific situation rather than a universal policy. Who knows? A black candidate could be one with an IQ of 160 and all the other qualities I mentioned and could be chosen instead of the Chinese one in my example, but maybe I need to grow up in order to understand how my example could be misconstrued.
Your comment was quite clear and racist as hell.
Don't waste your time trying to walk it back and don't waste your time commenting to me any longer.
Thomas advocates a 'solution' which returns the nation to its past status quo (with hope and prayers that conservatives have learned their lesson about freedom for all). /s
Conservatives will show us (immediately) that they have learned little to nothing in the years of affirmative action imposed on this nation's schools. Watch and see as they promote a conservative worldview (Whiteness standard and Christian nationalism) as a means of admission, while shutting out liberals (where most of the minorities of this nation reside).
As for Thomas, this foolish, insincere, and contrived individual, with all sorts of benefits handed to himself in life (by his CONSERVATIVE-bent friends and classification) I am confident will be a dissenting vote (place your bet!) on anything that helps LGBTQ minorities to succeed, prosper, and enjoy recent freedoms and liberties. So much for his role in "solving existing issues of inequality and reducing friction between citizens of this country"!
Watch this space! As Thomas persists in targeting LGBTQ citizens for renewed STIGMATIZATION.