(Washington Examiner) The Supreme Court ruled to ban the consideration of race as part of admissions decisions at colleges including Harvard University and the University of North Carolina, ending the decadeslong practice known as affirmative action.
Chief Justice John Roberts wrote for the majority to undo the lasting impacts of the landmark 1978 case Regents of the University of California v. Bakke, which upheld race-conscious admissions at universities.
Guixue Zhou of North Potomac, Md., left, and Samuel Yan, of Loudoun County, Va., protest against racial quotas during a rally outside the Supreme Court in Washington, Wednesday, Dec. 9, 2015, as the court hears oral arguments in the Fisher v. University of Texas at Austin affirmative action case. At right is Rep. Dana Rohrabacher, R-Calif., speaking in solidarity with the Asian American Coalition for Education protest.
(Jacquelyn Martin/AP)
Liberal Justice Sonia Sotomayor dissented and was joined by Justices Elena Kagan and Ketanji Brown Jackson as it applied to the Harvard case. Jackson dissented in the UNC case, joined by Sotomayor and Kagan.
Justices since November have been mulling over two cases brought by the nonprofit group Students for Fair Admissions, headed by conservative legal strategist Edward Blum, a staunch critic of affirmative action policies.
Meanwhile, the present 6-3 Republican-appointed majority on the court has been inching for years toward an eventual decision against affirmative action. Roberts has been one of the most eager members of the court against such policies, writing in the 2007 Parents Involved case: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
During oral arguments in October 2022, the court’s inclination to ban affirmative action was evident. The court’s six conservatives expressed skepticism toward the practice, even as attorneys for Harvard and UNC, along with U.S. Solicitor General Elizabeth Prelogar, implored the court to permit the practice to continue.
A 2014 SFFA case contended that Harvard’s admissions policy unlawfully discriminates against Asian American applicants. The university is accused of violating Title VI of the Civil Rights Act of 1964, which bars discrimination based on race, color, or national origin under any program or activity receiving federal funding.
Another case filed in 2014 alleged the University of North Carolina at Chapel Hill unlawfully discriminates against white and Asian American applicants. That suit accused the university of violating the Constitution’s 14th Amendment promise of equal protection under the law.
Blum started SFFA in 2014 in part to fight against the affirmative action policies allowed in the Bakkedecision. Such policies have long been debated as to whether they might inadvertently discriminate against other applicants. In 2003, the Supreme Court ruled against a University of Michigan system that awarded “points” to minority applicants as going too far but reaffirmed Bakke’s central holdings that schools could use race as one of several admission factors.
Banning the use of affirmative action will force elite colleges to reinvent their policies and find new ways to ensure diversity in their student populations without using race as a consideration. Several universities have expressed concerns in legal briefs that a decision to overturn affirmative action could result in fewer minority students on campuses.
But ahead of the high court’s opinion release, legal experts speculated colleges might attempt to maintain a superficial vision for diversity on campus without taking race into consideration.
Harvard Law School professor Noah Feldman wrote in October that the eventual decision for UNC and Harvard cases could be “written so narrowly that it would still be legal for universities to say that they merely hoped to achieve racial diversity. But taking any race-conscious decisions to achieve that goal would be illegal.”
