WASHINGTON – The Supreme Court on Thursday invalidated race-conscious admissions policies used by Harvard College and the University of North Carolina to diversify their campuses, a decision with enormous consequences not only for higher education but also the American workplace.
In a 6-3 decision written by Chief Justice John Roberts and decided along ideological lines, the court held that the policies violated the equal protection clause of the 14th Amendment. The vote was 6-2 in the Harvard case because Justice Ketanji Brown Jackson, as expected, recused herself because of her relationship with the college.
“We have time and again forcefully rejected the notion that government actors may intentionally allocate preference to those ‘who may have little in common with one another but the color of their skin,'” Roberts wrote in the majority opinion. “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.”
Roberts wrote that both programs lacked “sufficiently focused and measurable objectives” that warranted considering race as one factor. However, in an important caveat, Roberts left open the idea that schools could consider a candidate’s discussion of how race affected their life, such as through discrimination. But, Roberts warned, “universities may not simply establish through application essays or other means the regime we hold unlawful today.”
Harvard, the nation’s oldest private college, and the University of North Carolina, which lays claim to being its oldest public college, public college, acknowledged considering race as one of many factors in determining admissions, an approach consistent with Supreme Court precedent. But that 2003 decision was crafted by a different Supreme Court that included swing-vote justices who often reached conclusions through compromise.
In a scathing dissent joined by the court’s two other liberals, Justice Sonia Sotomayor said the decision rolled back “decades of precedent and momentous progress. “
The court, she wrote,” cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.”
Several members of the current court’s conservative majority, including Roberts, had long signaled skepticism about affirmative action.
The admissions cases were part of a broader conservative push to reimagine the equal protection clause of the 14th Amendment. Adopted after the Civil War, the amendment was intended to protect the rights of former slaves who were subjected to discriminatory state laws, particularly in the South. The wider debate – forged in the context of voting, housing, criminal justice and other areas – is whether the clause requires colorblind policies or whether, to stem discrimination, race may be considered.
Perhaps sensing a shifting landscape on the court, two lawsuits filed by Students for Fair Admissions, an anti-affirmative action group founded by conservative legal strategist Edward Blum, asked the justices to decide whether the 2003 precedent should be overruled. Years in the making, the litigation arrived as the nation continued to wrestle with the fallout from the decision last year to overturn Roe v. Wade.
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The Boston-based U.S. Court of Appeals for the 1st Circuit ruled in 2020 that Harvard permissibly used race under the 2003 precedent. A U.S. District Court in North Carolina ruled in favor of UNC. The cases are Students for Fair Admissions v. Harvard and Students for Fair Admissions v. UNC.
During a lengthy oral argument in October, the conservative justices focused on two points. The 2003 precedent included what some interpreted as an expiration date on the use of race-conscious admissions, a line in the majority opinion that signaled a hope that such policies would no longer be needed by 2028.
“We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” Associate Justice Sandra Day O’Connor wrote for the majority at the time. That line suggested the court’s acceptance of race-conscious admissions wouldn’t last forever.
Some in the court’s conservative wing signaled during arguments that their patience with such efforts was already up.
Another point of contention was just how seriously universities are taking the 2003 opinion’s directive to try race-neutral policies first. The court said that the law requires schools to engage in a “serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks.” Advocates on both sides of the issue debate the impact such race-neutral policies have in states that explicitly require them.
Nine states – including Washington, Michigan and California – already ban the consideration of race in higher education.
Contributing: Chris Quintana, Alia Wong
