Supreme Court rules against ffirmative ction

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 in uenced 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 decision in rutter 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.”

Justice Sonia Sotomayor 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 ustices to overrule rutter. In her opinion for the majority in that case, Justice Sandra Day 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 rutter, a group called Students for air dmissions 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. older, the case that narrowed the Voting Rights Act.

After the lower courts upheld both North Carolina’s and Harvard’s admissions policies, Blum’s group came to the Supreme Court, where it asked the justices to overrule their decision in rutter 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 - ustin 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 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.

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.”

Finally, Roberts observed, the Harvard and UNC programs lacked the “logical end point” suggested by rutter Both arvard and C acknowledged that their programs do not have a “sunset” date. Indeed, Roberts noted, “UNC suggests that it might soon use race to a greater e tent than it currently does.

Roberts stressed that the court’s decision did not bar universities from ever considering race on a case-bycase 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.” But programs like the ones used by Harvard and UNC, he complained, 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.

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 e uality 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.”

(The preceding article by AMY HOWE was published by SCOTUSBlog and is republished with permission.)