Supreme Court blocks use of affirmative action policies. How will ruling affect Florida?

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 for higher education and the American workplace, but whose impact could be blunted in Florida.

Florida is among nine states that already prohibit the use of race as a preference in college admissions, dating back to former Gov. Jeb Bush's controversial One Florida plan enacted by executive order in 1999.

In states with a ban, including Florida, researchers have found that enrollment of under-represented minorities, especially Black and Latino students, decreased at selective institutions, graduate and professional schools.

In the 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."

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Ruling may embolden DeSantis in attacks on diversity programs

The ruling underscores an approach Florida Gov. Ron DeSantis, a Republican presidential candidate, has been advancing on college campuses and workplaces. DeSantis last month signed into law a ban on the state's public colleges and universities from spending money on diversity, equity and inclusion programs.

A year earlier, a law enacted by DeSantis which he dubbed Stop Woke, put strict limits on academic and workplace discussions of race and gender inequities, a measure since blocked by a federal court as an unconstitutional free speech violation.

"Florida was one of the first states in the nation to ban race and gender preferences in college admissions," said Jeremy Redfern, a DeSantis spokesman, about Thursday's ruling. "We are proud to have a system based on merit instead of woke politics."

Renee' Fargason, a spokeswoman for the State University System of Florida, said the ruling will have no impact on state schools and touting what she called "one of the most diverse systems in the country."

"Florida is proof that diversity can be achieved without affirmative action," Fargason said.

Former President Donald Trump, who holds a commanding lead over DeSantis and other contenders for the GOP presidential nomination, also hailed the decision.

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"This is the ruling everyone was waiting and hoping for and the result was amazing," Trump said in a statement.

He added, "We’re going back to all merit-based — and that’s the way it should be!"

A scathing dissent

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."

National Education Association President Becky Pringle, whose union represents faculty and staff at colleges and universities, also condemned the decision.

"For too long, color-coded barriers have been used to prevent Black, brown, and Indigenous people from accessing the opportunities we all deserve and seek to achieve our dreams. With this decision, the Supreme Court has reinforced those barriers," Pringle said.

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.

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.

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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.

Along with Florida, Washington, Michigan and California are among the states which already ban the consideration of race in higher education

Contributing: Chris Quintana, Alia Wong, John Kennedy

This article originally appeared on USA TODAY: Affirmative action gutted by Supreme Court. Florida blocked it in 2009