Supreme Court Restricts Race-Based Affirmative Action in College Admissions

From a Washington Post story by Robert Barnes headlines “Supreme Court restricts race-based affirmative action in college admissions”:

The Supreme Court on Thursday held that admissions programs at Harvard and the University of North Carolina that relied in part on racial considerations violate the Constitution’s guarantee of equal protection, a historic ruling that will force a dramatic change in how the nation’s private and public universities may select their students.

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.

“The student must be treated based on his or her experiences as an individual — not on the basis of race,” Roberts wrote. “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.”

While the case involved race-conscious programs at Harvard and UNC, the decision will affect virtually every college and university in the United States. In anticipation of the ruling, leaders of elite private and public institutions have said they fear a dramatic drop in Black and Hispanic students if they are forced to rely only on grades and test scores in making admissions decisions.

It was the second time in as many terms that the court’s dominant conservative majority has undermined decades-old, landmark rulings. Last year, the justices ended the guarantee of abortion rights that court found nearly 50 years ago in Roe v. Wade. It was 45 years ago that the court first approved the limited use of affirmative action in college admissions decisions, citing the importance of filling U.S. campuses with students from varied backgrounds.

In dissent on Thursday, Justice Sonia Sotomayor wrote that it is 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 has said her own life is an example of how affirmative action programs can work. In her 69-page dissent, she wrote: “Equal educational opportunity is a prerequisite to achieving racial equality in our Nation.”

“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 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.”

Sotomayor, the court’s lone Latina justice, spoke at length from the bench, a tactic justices use to mark their profound disagreement with a decision. She was joined in her dissent by Justices Elena Kagan and Ketanji Brown Jackson, although Jackson recused herself from the Harvard case because she served on a board at the university.

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.”

Thomas, who for decades was in the minority on this issue, took the unusual step of reading from his concurring opinion immediately after Roberts read the majority’s decision.

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

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.”

As recently as 2016, the court upheld an affirmative action program at the University of Texas, concluding for the third time that educational diversity justifies the consideration of race as one factor in admission decisions.

But Sotomayor is the only justice remaining on the court from that slim 4-3 majority. At the time, conservative activist Edward Blum, who brought previous challenges to the practice, was already working on new lawsuits he could present to a rebuilt court.

In the North Carolina case that was decided Thursday, his group Students for Fair Admissions said the flagship university’s policies discriminated against White and Asian applicants by giving preference to Black, Hispanic and Native American ones.

The case against Harvard, also decided Thursday, accused the university of discriminating against Asian American students by employing subjective standards to limit the numbers accepted.

Challengers say that under the equal protection clause, government-run universities like UNC cannot use race as a factor in admissions decisions. Harvard is not subject to that constitutional clause, but must adhere to Title VI of the Civil Rights Act of 1964. That statute prohibits racial discrimination in the exclusion or denial of benefits under “any program or activity receiving Federal financial assistance.”

At oral argument, several conservative justices repeatedly returned to the question of when — if ever — the consideration of race would no longer be necessary in college admissions. The justices pointed to the majority opinion in Grutter, in which Justice Sandra Day O’Connor’s opinion said racial preferences were not likely to be needed in 25 years.

That ruling 20 years ago was the first affirmative action decision by a Supreme Court on which White men did not make up a majority. The justices deciding this year’s affirmative action cases represent the most diverse Supreme Court in history.

Five of the nine justices had never cast a vote on the issue before this term, although some — notably Thomas and Sotomayor — have said affirmative action played a dramatic role in their lives. Those two justices came away from the experience with vividly different views.

Sotomayor, the court’s first Latina, has been the boldest defender of what she prefers to call “race-sensitive” admission policies and has referred to herself as the “perfect affirmative action child.” Without a boost, she has said, she likely never would have been transported from Bronx housing projects to the Ivy League. But she excelled as a top student at Princeton and Yale Law School once she got there.

Thomas, the second Black justice, countered that he felt affirmative action made his diploma from Yale Law practically worthless; he has been a fierce opponent of racial preferences in his three decades on the court. “Racial paternalism … can be as poisonous and pernicious as any other form of discrimination,” he has written.

The cases are Students for Fair Admissions v. University of North Carolina, and Students for Fair Admissions v. President and Fellows of Harvard College.

Robert Barnes has been a Washington Post reporter and editor since 1987. He joined The Post to cover Maryland politics, and he has served in various editing positions, including metropolitan editor and national political editor. He has covered the Supreme Court since November 2006.