The Supreme Court issued an opinion this morning officially declaring affirmative action unconstitutional.
The case, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, posed the question of whether higher education institutions could consider an applicant’s race during the admissions process.
In their decision, the Court ruled that Harvard College’s race-conscious admissions process actively violates the Equal Protection Clause of the Fourteenth Amendment.
“Eliminating racial discrimination means eliminating all of it,” Chief Justice John Roberts wrote in the majority opinion.
The Supreme Court first considered race-based admissions policies in the case of Regents of the University of California v. Bakke (1978) in which a 35-year-old white man was twice denied admission to the University of California Medical School at Davis despite being more highly qualified than any of the minority students admitted through the school’s affirmative action program.
“In a deeply splintered decision that produced six different opinions, Justice [Lewis F.] Powell’s opinion for himself alone would eventually come to ‘serv[e] as the touchstone for constitutional analysis of race-conscious admissions policies,'” wrote Chief Justice Roberts.
“After rejecting three of the University’s four justifications as not sufficiently compelling, Justice Powell turned to its last interest asserted to be compelling – obtaining the educational benefits that flow from a racially diverse student body,” Chief Justice Roberts said. “Justice Powell found that interest to be ‘a constitutionally permissible goal for an institution of higher education,’ which was entitled as a matter of academic freedom ‘to make its own judgments as to…the selection of its student body.'”
In 2003, the Court revisited Bakke in the case of Grutter v. Bollinger. Similarly to Bakke, a highly qualified white Michigan resident applied to the University of Michigan Law School and was denied. The law school subsequently admitted to using race as a factor in its admissions process for the purpose of “‘achieving diversity among its student body.'”
Although the opinion in Grutter largely tracked that of Justice Powell in Bakke, it “imposed one final limit on race-based admissions programs: At some point, the Court held, they must end.”
“Recognizing that ‘[e]nshrining a permanent justification for racial preferences would offend’ the Constitution’s unambiguous guarantee of equal protection, the Court expressed its expectation that, in 25 years, ‘the use of racial preferences will no longer be necessary to further the interest approved today,'” Chief Justice Roberts explained in today’s decision.
The Grutter opinion was released 20 years ago, and according to Chief Justice Roberts, there is “no end to race-based college admissions in sight.”
The Court stated in their opinion today that although race-based admissions programs have continued to be allowed to date, it has been established that they “must comply with strict scrutiny, may never use race as a stereotype or negative, and must – at some point – end.”
“Respondents’ admissions systems fail each of these criteria and must therefore be invalidated under the Equal Protection Clause of the Fourteenth Amendment,” Chief Justice Roberts argued.
The Court then elaborated upon this statement, issuing two criticisms against Harvard College’s race-conscious admissions system.
“First, the interests that respondents view as compelling cannot be subjected to meaningful judicial review,” Chief Justice Roberts wrote. He argued that “it is unclear how courts are supposed to measure” goals such as “training future leaders, acquiring new knowledge based on diverse outlooks, promoting a robust marketplace of ideas, and preparing engaged and productive citizens.”
Even if measurement were possible, the Court argued that it would nonetheless remain unclear as to how one would “know when they have been reached so that racial preferences can end.”
Secondly, the Chief Justice argued that Harvard College “fail[ed] to articulate a meaningful connection between the means they employ and the goals they pursue.”
Furthermore, he stated that “to achieve the educational benefits of diversity, respondents measure the racial composition of their classes using racial categories that are plainly overbroad.”
Chief Justice Roberts then commented on the primary response offered to these critiques:
The universities’ main response to these criticisms is ‘trust us.’ They assert that universities are owed deference when using race to benefit some applicants but not others. While this Court has recognized a ‘tradition of giving a degree of deference to a university’s academic decisions,’ it has made clear that deference must exist ‘within constitutionally prescribed limits.’
The Court further declared that Harvard College’s race-conscious admissions program “also fail[s] to comply with the Equal Protection Clause’s twin commands that race may never be used as a ‘negative’ and that it may not operate as a stereotype,” on account of the fact that “college admissions are zero-sum, and a benefit provided to some applicants but not to others necessarily advantages the former at the expense of the latter.”
Chief Justice Roberts also spoke to the unconstitutionality of the metrics often used to measure the level of diversity within a class:
Respondents suggest that the end of race-based admissions programs will occur once meaningful representation and diversity are achieved on college campuses. Such measures of success amount to little more than comparing the racial breakdown of the incoming class and comparing it to some other metric, such as the racial makeup of the previous incoming class or the population in general, to see whether some proportional goal has been reached. The problem with this approach is well established: ‘[O]utright racial balancing’ is ‘patently unconstitutional.’
The Court did, however, declare that “nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university.”
According to Chief Justice John Roberts:
Many universities have for too long wrongly concluded that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned, but the color of their skin. This Nation’s constitutional history does not tolerate that choice.
In the dissenting opinion, Justice Sonia Sotomayor argued that “the Court long ago concluded that [the Fourteenth Amendment’s] guarantee [of racial equality] can be enforced through race-conscious means in a society that is not, and has never been, colorblind.”
“Although progress has been slow and imperfect, race-conscious college admissions policies have advanced the Constitution’s guarantee of equality and have promoted [Brown v. Board of Education]’s vision of a Nation with more inclusive schools,” Justice Sotomayor wrote.
The dissenting opinion further argues that the Court, in prohibiting race-conscious admissions, “cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.”
“The Court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society,” Justice Sotomayor stated.
Harvard College issued a statement late this morning following the Court’s decision:
We write today to reaffirm the fundamental principle that deep and transformative teaching, learning, and research depend upon a community comprising people of many backgrounds, perspectives, and lived experiences. That principle is as true and important today as it was yesterday. So too are the abiding values that have enabled us – and every great educational institution – to pursue the high calling of educating creative thinkers and bold leaders, of deepening human knowledge, and of promoting progress, justice, and human flourishing.
The College was clear, however, to state that they will “certainly comply with the Court’s decision.”
“For almost a decade, Harvard has vigorously defended an admissions system that, as two federal courts ruled, fully complied with longstanding precedent. 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,” the College stated.
The Supreme Court’s majority opinion was written by Chief Justice John Roberts and joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.
Concurring opinions were filed by Justices Thomas, Gorsuch, and Kavanaugh.
Justices Sonia Sotomayor authored the dissenting opinion and was joined by Justices Elena Kagan and Ketanji Brown Jackson.