Supreme Court rules race-based affirmative action unconstitutional

Race-infused affirmative action programs violate the Constitution’s guarantees of equal treatment, the Supreme Court ruled Thursday in a pair of monumental decisions striking down the policies used by major colleges and universities to try to add more Black and Hispanic students to their ranks.

The ruling doesn’t ban the mention of race in students’ applications or block a school from evaluating a candidate’s experiences with race, either as a personal hurdle or inspiration, as part of an admissions decision.

The court said schools can no longer defend policies that claim to try to find the right racial mix of students for an incoming class. Such policies reduce students to the color of their skin, the justices said in a 6-3 ruling.

Chief Justice John G. Roberts Jr., writing the key opinion, said students must be treated on the basis of their “experiences as an individual — not on the basis of race.”

“Many universities have for too long done just the opposite. And in doing so, they 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 chief justice wrote.

The court ruling applied specifically to the policies at Harvard University and the University of North Carolina at Chapel Hill, which had guidelines that seemed to reward some minority students with an easier path to admission while creating an additional hurdle for White and Asian students.

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The schools said they needed to advantage Black and Hispanic students to achieve enough diversity to enhance the educational experience for all students.

Chief Justice Roberts said that amounted to racial balancing, which he called “patently unconstitutional” under the 14th Amendment’s 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,” he said.

That doesn’t mean race is completely banned, the court said.

Universities may still look at how potential students’ race affected their circumstances, either in facing discrimination or finding inspiration, but universities cannot create a workaround by asking students to talk about race in admissions essays, for example, and then use those essays to advantage certain minorities.

President Biden called on schools to lean into that idea and adopt policies to look at adversity a student has had to overcome.

“Discrimination still exists in America. Today’s opinion does not change that,” Mr. Biden said at the White House. He decried the decision as rolling back “decades of precedent and momentous progress.”

Affirmative action advocates said the ruling does give them space to bolster minority enrollment, including recruiting based on income or socioeconomic background, geography or first-generation college students. Schools also could eliminate some preferences that benefit White students most, such as for donors and children of alumni.

The ruling doesn’t apply to policies at the U.S. military service academies, which have different considerations.

Affirmative action proponents said to expect Black and Hispanic admissions to tumble, particularly at elite schools. They said effects of the ruling also will reverberate in the professional and business world.

All six justices in the majority were appointed by Republicans. Among them was Justice Clarence Thomas, the second Black justice in history, who penned a forceful opinion declaring that the optimistic and “colorblind” Constitution had finally prevailed.

“While I am painfully aware of the social and economic ravages which have befallen my race and all who suffer discrimination, I hold out enduring hope that this country will live up to its principles so clearly enunciated in the Declaration of Independence and the Constitution of the United States: that all men are created equal, are equal citizens, and must be treated equally before the law,” Justice Thomas wrote in a concurring opinion.

All three Democratic-appointed justices dissented. They said the 14th Amendment doesn’t guarantee racial neutrality, but rather “racial equality,” and achieving equality sometimes requires “race-conscious” policies.

“Today, this Court stands in the way and rolls back decades of precedent and momentous progress,” Justice Sonia Sotomayor wrote. “It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits. In so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.”

She suggested that the ruling, which reverses the course from decades of precedent, is more a result of changing membership on the high court than any revelations about race, education and the law.

Justice Ketanji Brown Jackson, the court’s third Black justice, wrote a dissent accusing the court of “becoming an impediment to racial progress.”

“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,” Justice Jackson wrote.

Harvard and UNC made tantalizing targets as the oldest private university and the oldest public university in the country, respectively.

The cases also turned the usual Black/White dichotomy on its head by using Asian American plaintiffs, who argued that attempts to boost one minority ended up hurting another.

Harvard and UNC cast their policies as helping those underrepresented in their student bodies. They said they used race as one factor among dozens for each student to craft the best demographics. The schools said they did not dole out points specifically on the basis of race.

Students for Fair Admissions, the group challenging both schools’ policies, said boosting one race inevitably means other demographics suffer with admission caps.

The result, Chief Justice Roberts said in his ruling, was a strident focus on racial percentages rather than on individual students.

He pointed to Harvard’s admissions rates showing that the school seems to have a rough target for Black, Hispanic and Asian American students for each class.

“Harvard must use precise racial preferences year in and year out to maintain the unyielding demographic composition of its class,” the chief justice wrote.

He said the nebulous goal of “diversity” suggests no real endpoint for the “pernicious” focus on race.

“The entire point of the Equal Protection Clause is that treating someone differently because of their skin color is not like treating them differently because they are from a city or from a suburb, or because they play the violin poorly or well,” the chief justice wrote.

Edward Blum, president of Students for Fair Admissions, said his outfit will be watching to see whether schools comply with the ruling.

“Beginning today, America’s colleges and universities have a legal and moral obligation to strictly abide by the Supreme Court’s opinion,” he said. “These obligations compel the removal of all racial and ethnic classification boxes from undergraduate and postgraduate application forms.”

Affirmative action has bedeviled the justices for more than 40 years, to the 1978 ruling in the Bakke case that found affirmative action policies were acceptable but only under limited circumstances. The justices have repeatedly revisited the issue, most crucially in 2003’s Grutter decision, where the court said racial preferences were allowed but only as part of a holistic review of an applicant, with race serving as a “plus” factor among others.

In crafting the 1978 opinion, now-retired Justice Sandra Day O’Connor wrote that the racial preferences in question were perilous and shouldn’t last forever. She posited a 25-year expiration date.

The Harvard and UNC cases came to the court 20 years after her ruling, just as the classes of 2028 — 25 years after Grutter — were about to be chosen.

Justice Sotomayor called the 25-year deadline “arbitrary” and said too little has changed with regard to minority admissions.

Chief Justice Roberts said the schools acknowledge that they don’t have any endpoint in mind. He and Justice Brett M. Kavanaugh, who was part of the six-justice majority, said perpetual race-based policies are not acceptable solutions as far as the equal protection clause goes. 

Justice Kavanaugh, in a concurring opinion, said that’s been clear in every previous high court precedent that did allow affirmative action. All of them acknowledged concerns about such a divisive and constitutionally suspect method of sorting Americans by race, and they envisioned a day when it wouldn’t be appropriate anymore.

That day has come, Justice Kavanaugh said.

“A generation has now passed since Grutter, and about 50 years have gone by since the era of Bakke,” he wrote. “In light of the Constitution’s text, history, and precedent, the Court’s decision today appropriately respects and abides by Grutter’s explicit temporal limit on the use of race-based affirmative action in higher education.”

The next round of legal battles is brewing in lower courts over plans that pick students based on geography.

A federal appeals court ruled last month that the policy used by Thomas Jefferson High School for Science and Technology in Fairfax County, Virginia, is legal even though it cuts Asian American admissions.

The majority in that 2-1 ruling found that the school board’s policy, on its face, didn’t target any race or ethnicity but rather changed the demographics by guaranteeing seats to students based on the middle schools they attended. The majority said Asian students still gained admission at a higher rate than other races.

The dissenting judge pointed to some school board members’ seeming obsession with race as they crafted the policy as evidence that the intent was to lower Asian American students’ admissions.

The Supreme Court cases decided Thursday are Students for Fair Admissions v. President and Fellows at Harvard College and Students for Fair Admissions Inc. v. University of North Carolina.

Harvard and UNC released statements expressing disappointment but saying they would abide by the ruling.