U.S. Supreme Court rules that affirmative action programs are unconstitutional

The U.S. Supreme Court on Thursday ruled in a pair of cases that affirmative action admissions programs at two universities are unconstitutional, a decision excoriated in dissents by liberal justices including Sonia Sotomayor, who wrote that the court’s right-wing supermajority is “entrenching inequality in education.”

The justices ruled that racially conscious admissions programs at the University of North Carolina and Harvard University violate the U.S. Constitution’s equal protection clause.

The vote was 6-3 in Students for Fair Admissions v. University of North Carolina (UNC) and 6-2 in Students for Fair Admissions v. President and Fellows of Harvard College, from which Justice Ketanji Brown Jackson recused herself because she once served on one of Harvard’s governing boards.

The justices held that admissions programs at Harvard and the University of North Carolina, which relied in part on race, violated the Constitution. The historic ruling will force dramatic change in how universities select students.

The justices struck down affirmative action in college admissions, undoing a policy that selective schools have relied on for decades to increase the racial diversity of their admitted classes.

The decision is a crushing defeat for institutions that consider race as a factor in the admissions process and is one that will certainly cause those institutions to scramble for ways to diversify their applicant pools as minority populations remain underrepresented in higher education.

The votes split along ideological grounds, with Chief Justice John G. Roberts Jr. writing for the conservative members in the majority, and the liberals dissenting. While the ruling involved race-conscious programs at Harvard and UNC, it will affect virtually every college and university in the United States.

“The student must be treated based on his or her experiences as an individual — not on the basis of race,” Roberts wrote, joined by Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett. “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.”

Roberts said the admissions programs at Harvard and UNC “lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.”

But he added that “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.”

It was the second time in as many terms that the court’s dominant conservative majority has undermined decades-old, landmark rulings. The votes were 6-to-3 in the University of North Carolina case and 6-to-2 in the Harvard case, with Justice Ketanji Brown Jackson recusing herself because she served on a board at Harvard.

Last year, the justices ended the guarantee of abortion rights that the high court found nearly 50 years ago in Roe v. Wade.

The court first approved the limited use of affirmative action in college admissions decisions 45 years ago, citing the importance of filling U.S. campuses with students from varied backgrounds.

In a lengthy dissent, Justice Sonia Sotomayor, the court’s lone Latina justice, wrote that it is “a disturbing feature of today’s decision that the Court does not even attempt to make the extraordinary showing required” to reverse precedent.

Sotomayor, who has said her own life is an example of how affirmative action programs can work, spoke at length from the bench on Thursday, a tactic justices use to mark their profound disagreement with a decision.

“Equal educational opportunity is a prerequisite to achieving racial equality in our Nation,” she wrote, joined by Jackson and Justice Elena Kagan.

“Today, this Court stands in the way and rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits,” Sotomayor’s dissent said. “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.”

Roberts’s majority opinion did not specifically say the court was overturning its precedent in Grutter v. Bollinger, the 2003 opinion that said universities could consider race as a factor in admission decisions to build a diverse student body.

But in his concurring opinion, Justice Clarence Thomas, a longtime opponent of affirmative action, wrote: “The Court’s opinion rightly makes clear that Grutter is, for all intents and purposes, overruled. And, it sees the universities’ admissions policies for what they are: rudderless, race-based preferences designed to ensure a particular racial mix in their entering classes.”

In a footnote, Roberts acknowledged that the federal government has argued there is a compelling interest in allowing the nation’s military academies to consider race in their admissions decisions. He held out the possibility that an argument could be considered in a future case, “in light of the potentially distinct interests that military academies may present.”

Leaders of elite private and public institutions have said they fear a dramatic drop in Black and Hispanic students if they are prohibited from giving any racial preference when making admissions decisions among qualified applicants.

President Biden appeared before reporters Thursday afternoon to express his strong disagreement with the decision. He defended affirmative action as a necessary tool, saying it enables colleges to admit a more diverse group of students who meet their admissions criteria.

“Discrimination still exists in America,” Biden said, repeating the phrase two more times for emphasis. He said he was directing the Education Department to “analyze what practices” at colleges and universities “help build a more inclusive and diverse student body and what practices hold that back.”

Thomas, who for decades was in the minority as the court upheld versions of affirmative action policies, took the unusual step of reading from his concurring opinion immediately after Roberts read the majority’s decision.

He said he was writing to make the case for a “color-blind” Constitution, although he acknowledged being “painfully aware of the social and economic ravages which have befallen my race and all who suffer discrimination.”

In his concurring opinion, Thomas directly engaged with Jackson, one of the court’s most liberal members, and the only other Black justice. In her view, he wrote, “almost all of life’s outcomes may be unhesitatingly ascribed to race.”

Jackson’s dissent, which she did not read from the bench, responds to what she called Thomas’s “prolonged attack.”

“With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat,” Jackson wrote. “But deeming race irrelevant in law does not make it so in life.”

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