Freedom

By Matthew Vadum

The Supreme Court struck down on a 6–3 vote the use of racially discriminatory admissions policies at U.S. colleges. The decision issued on June 29 ends the use of so-called affirmative action in higher education, a longtime goal of conservatives.

Chief Justice John Roberts wrote (pdf) 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.”

But in a footnote, Roberts carved out an exception for military academies. Because military academies did not participate in the case and “none of the courts below addressed the propriety of race-based admissions systems in that context,” the new decision applies only to civilian educational institutions of higher learning, he wrote. The exception appears to suggest the court could in the future consider the use of affirmative action in admissions at military academies.

Justice Sonia Sotomayor wrote a dissenting opinion.

The new decision “rolls back decades of precedent and momentous progress,” she said.

The case is actually two separate appeals that were heard together on Oct. 31, 2022: Students for Fair Admissions Inc. (SFFA) v. President and Fellows of Harvard College, court file 20-1199, and SFFA v. University of North Carolina (UNC), court file 21-707.

Roberts wrote the majority opinion in the UNC case, which was joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, Samuel Alito, and Amy Coney Barrett. The court’s three liberal justices, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson dissented. The vote was 6–3.

The justices’ votes in the Harvard case were the same except that Jackson did not participate in the decision after she recused herself because she has close ties to Harvard. Kagan did not recuse herself even though she used to be dean of the Harvard Law School from 2003 to 2009. The vote in this case was 6–2.

Considered a conservative group, SFFA calls itself “a nonprofit membership group of more than 20,000 students, parents, and others, who believe that racial classifications and preferences in college admissions are unfair, unnecessary, and unconstitutional.”

Harvard and UNC are, respectively, the oldest private college and the oldest public college in the United States.

In the Harvard case, U.S. District Judge Allison Dale Burroughs previously found after a 15-day non-jury trial for Harvard, ruling its admission policy that was said to discriminate against Asian American applicants was not motivated by “racial animus … or intentional discrimination” and was “narrowly tailored to achieve diversity and the academic benefits that flow from diversity.” The U.S. Court of Appeals for the 2nd Circuit upheld the lower court’s decision, ruling against SFFA.

In the North Carolina case, U.S. District Judge Loretta Copeland Biggs previously held an eight-day nonjury trial to determine if UNC was complying with existing precedent.

The court approved the school’s admissions policy because it uses race “flexibly as a ‘plus’ factor” and only as “one among many factors.” The court found UNC had no viable race-neutral alternatives to help it “achieve the educational benefits of diversity about as well as its current race-conscious policies and practices.”

The court stated that providing admissions preferences based on socioeconomic status instead of race would not work because “the majority of low-income students are white,” so the schools would just “be choosing more white students.” Race should be used by UNC indefinitely because it is “interwoven in every aspect of the lived experience.” Until the United States one day resolves its “struggle with racial inequality,” minority students would continue to be “less likely to be admitted in meaningful numbers on [race-neutral] criteria.”

SFFA promptly filed an appeal with the U.S. Court of Appeals for the 4th Circuit, but before that court could rule on the case, also sought review from the Supreme Court, which was granted.

In the majority opinion, Roberts wrote that the Harvard and UNC admissions programs “cannot be reconciled with the guarantees of the Equal Protection Clause.”

“Both 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 endpoints. We have never permitted admissions programs to work in that way, and we will not do so today.”

Years earlier, then-Justice Sandra Day O’Connor had predicted the demise of affirmative action. In Grutter v. Bollinger (2003), she wrote, “We expect that 25 years from now the use of racial preferences will no longer be necessary to further the interest approved today.”

Making race-conscious admissions decisions is “dangerous,” O’Connor wrote, calling it a “deviation from the norm of equal treatment.” Such programs must “be limited in time,” she stated, adding that “all governmental use of race must have a logical end point.”

While race can’t be used as a factor in admissions decisions, this doesn’t mean college applicants have to refrain during the process from discussing race, the opinion stated.

“Nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration or otherwise,” Roberts wrote.

“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,” he wrote.

“In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race.”

Justice Clarence Thomas, who had long pressed to end affirmative action, wrote a 58-page opinion concurring with the majority.

The new ruling “sees the universities’ admissions policies for what they are: rudderless, race-based preferences designed to ensure a particular racial mix in their entering classes,” Thomas wrote.

Justice Jackson wrote in a separate, 29-page dissenting opinion in the UNC case that the majority opinion is “truly a tragedy for us all.”

“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,” Jackson wrote. Sotomayor and Kagan joined Jackson’s dissent.