Supreme Court Rejects Use of Race in University Admissions

Greg Stohr
·6 min read
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(Bloomberg) -- The US Supreme Court effectively barred universities from using race as a factor in university admissions, marking the start of a new era in higher education and rolling back decades of precedents.

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Voting 6-3 along ideological lines, the justices said Thursday that programs at Harvard College and the University of North Carolina violated the Constitution’s equal protection clause. Writing for the court, Chief Justice John Roberts rejected contentions that the programs were warranted to ensure campus diversity.

Many universities “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,” Roberts wrote. “Our constitutional history does not tolerate that choice.”

The ruling could mean fewer Black and Hispanic students at the country’s top universities and force hundreds of schools to revamp their admissions policies. Studies indicate a majority of selective US universities now consider race in admissions, though nine states including California and Florida ban the practice at public institutions.

“The court once again walked away from decades of precedent,” President Joe Biden told reporters Thursday. “The court has effectively ended affirmative action in college admissions and I strongly, strongly disagree with the court’s decision.”

The high court majority didn’t explicitly say it was overturning a 2003 decision, known as Grutter v. Bollinger, that had reaffirmed the right of universities to consider race as one of many admissions factors. But in a concurring opinion, Justice Clarence Thomas said that ruling “is, for all intents and purposes, overruled.”

‘Devastating Impact’

Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson dissented.

“Today, this court overrules decades of precedent and imposes a superficial rule of race blindness on the nation,” said Sotomayor, who took the unusual step of reading a summary of her dissent from the bench. “The devastating impact of this decision cannot be overstated.”

Jackson, who participated only in the North Carolina case because she previously served on the Harvard Board of Overseers, said the majority opinion ignored “the lengthy history of state-sponsored race-based preferences in America.” The country, she said, “has never been colorblind.”

Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett joined Roberts and Thomas in the majority.

Roberts said universities could consider how race affected the lives of individual applicants “be it through discrimination, inspiration or otherwise.”

But universities “may not simply establish through application essays or other means the regime we hold unlawful today,” Roberts wrote.

Roberts didn’t explicitly say whether universities could seek racial diversity through race-neutral means — such as preferences based on socioeconomic status. In states that have abolished racial preferences, some universities have buttressed diversity by offering automatic admission to students who graduate near the top of their high school class.

Sotomayor in her dissent said colleges could keep pursuing socioeconomic diversity and giving preferences to first-generation college applicants and people who speak multiple languages.

“Universities should continue to use those tools as best they can to recruit and admit students from different backgrounds based on all the other factors the court’s opinion does not, and cannot, touch,” she wrote.

Thomas Statement

The ruling left open the possibility that the nation’s military academies might still be able to consider race. Defenders of affirmative action, including the Biden administration, argued that that the US military depends on a racially mixed officer corps to lead a diverse fighting force. Roberts said those academies had “potentially distinct interests.”

Read this next: Affirmative Action’s End Will Crush the Diversity Talent Pipeline

Like Sotomayor, Thomas read a summary of his opinion from the bench.

“Those policies fly in the face of our colorblind Constitution and our nation’s equality ideal,” Thomas wrote. “In short, they are plainly — and boldly — unconstitutional.”

Thomas and Jackson are the court’s only Black members, while Sotomayor is the lone Hispanic justice.

Opponents of racial preferences sought to take advantage of a court that has become more conservative since 2003. The universities were fighting lawsuits by Students for Fair Admissions, an anti-preferences organization run by former stockbroker Ed Blum that says its members include unsuccessful applicants to both schools.

The group contended that Harvard penalizes Asian Americans during the admissions process, assigning them lower ratings on leadership and likability, while automatically giving preferences to Black and Hispanic applicants.

“The opinion issued today by the United States Supreme Court marks the beginning of the restoration of the colorblind legal covenant that binds together our multiracial, multi-ethnic nation,” Blum said in a statement.

Harvard Reaction

Harvard denied those allegations, saying it considers the race only of highly competitive candidates for admission and doesn’t penalize Asian-American applicants.

The Biden administration joined the two universities in defending affirmative action programs, arguing that students of all races benefit from having diverse peers.

Harvard University President Lawrence Bacow said the school will comply with the decision.

“In the weeks and months ahead, drawing on the talent and expertise of our Harvard community, we will determine how to preserve, consistent with the court’s new precedent, our essential values,” Bacow and other university officials said in a public letter to members of the Harvard community.

The Harvard case formally involved Title VI of the 1964 Civil Rights Act, not the equal protection clause, which applies to government actors. In the 1978 Regents of the University of California v. Bakke decision, the court said Title VI and the equal protection clause impose the same legal test.

Roberts said in a footnote that, because no party was questioning that parallel, the court would scrutinize Harvard’s program under the equal protection clause.

Diversity Impact

The share of Black and Latino students at elite colleges initially plummeted in states that banned affirmative action at public institutions. Although the numbers have recovered at least to some degree – the University of California says its system as a whole admitted its most diverse class ever in 2021 – advocates say the most selective schools are far less diverse than the state as a whole.

A comprehensive study published in 2020 found that, after California pulled back the practice, Black and Latino students enrolled in less selective institutions and were less likely to get college degrees in lucrative fields.

The University of Michigan told the court that Black enrollment has fallen from 7.03% in 2006 – just before the state’s voters abolished race-conscious admissions at public universities – to 3.92% in 2021. Native American enrollment plummeted 90%. Overall, enrollment of underrepresented minorities has risen from 12.9% to 13.46%, the university said.

The cases are Students for Fair Admissions v. President and Fellows of Harvard College, 20-1199, and Students for Fair Admissions v. University of North Carolina, 21-707.

--With assistance from Emily Birnbaum, Patricia Hurtado and Kelsey Butler.

(Adds additional comments from Roberts, Sotomayor starting in third paragraph.)

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