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Supreme Court guts affirmative action, effectively ending race-conscious admissions

By: Nina Totenberg | NPR
Posted on: Thursday, June 29, 2023

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WASHINGTON (NPR) — The U.S. Supreme Court has found that Harvard and the University of North Carolina’s admissions policy violated the equal protection clause of the 14^th Amendment.

The decision reverses decades of precedent upheld over the years by narrow court majorities that included Republican-appointed justices. It could end the ability of colleges and universities — public and private — to do what most say they still need to do: consider race as one of many factors in deciding which of the qualified applicants is to be admitted.

Chief Justice John Roberts, a longtime critic of racial preferences of any kind, wrote the court’s majority decision saying that the nation’s colleges and universities must use colorblind criteria in admissions.

“The Court has permitted race-based college admissions only within the confines of narrow restrictions: such admissions programs must comply with strict scrutiny, may never use race as a stereotype or negative, and must—at some point—end,” the court wrote in its majority opinion. “Respondents’ admissions systems fail each of these criteria and must therefore be invalidated under the Equal Protection Clause of the Fourteenth Amendment.”

The ruling in the UNC case was 6-3 along ideological lines; in the Harvard case, it was 6-2, with Justice Ketanji Brown Jackson recusing.

The majority added: “At the same time, 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. 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.”

Chief Justice Roberts explicitly exempted military academies from this ban on race-conscious admissions “in light of the potentially distinct interests” they may present.

In furious dissents, the court’s liberals pilloried the majority’s reasoning and its view of racial reality in the United States.

“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 Sonia Sotomayor wrote.

Added Justice Ketanji Brown Jackson: “With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat. But deeming race irrelevant in law does not make it so in life. And having so detached itself from this country’s actual past and present experiences, the Court has now been lured into interfering with the crucial work
that UNC and other institutions of higher learning are doing to solve America’s real-world problems.”

Thursday’s decisions are likely to cause ripples throughout the country, and not just in higher education, but in selective primary and secondary schools like Boston Latin in Massachusetts, Thomas Jefferson high school in Virginia, and Bronx High School of Science in New York. Similarly, the decision will almost certainly facilitate legal challenges to minority scholarship and fellowship programs, and ultimately, effects will be felt on a much larger scale in employment, and elsewhere. Indeed, almost every business or institution in America has some sort of a race-conscious program, at least to facilitate race relations.

But Edward Blum, who for decades has been a one-man crusader against everything from the Landmark 1965 Voting Rights Act to affirmative action in higher education, plans to challenge some corporate boards on racial preference grounds, and he says he knows of other plans to challenge minority scholarship and fellowship programs.

“It’s going to open a Pandora’s box across the country and across institutions and industries,” said Harvard co-counsel Bill Lee in an NPR interview last fall.

The court’s decisions came in cases involving two elite institutions, one the oldest public university–the University of North Carolina–and the other, the oldest private university, Harvard. Blum, the anti-affirmative activist, likely chose these highly visible schools as his legal targets precisely because of their elite status.

UNC did not admit Black undergraduates until 1955, and then only after it was ordered to by the federal courts. Harvard, by contrast, became the model for affirmative action programs in 1978 when the Supreme Court cited the school’s consideration of race as similar to other traits the school relied on to ensure a diverse student body. Thus, the court said back then that race could be one of many factors that the school considered, just as other characteristics were considered– geography, or being raised on a farm, or special achievements in everything from science to athletics, or being a so-called “legacy student,” the son or daughter of someone who attended Harvard.

That system, reaffirmed twice by the Supreme Court, has remained in place not just at Harvard, but at most of the institutions of higher learning across the United States. Until Thursday, when the court, as it did last year in the abortion case, upended decades of its own precedents.

The court’s conservatives said that the Constitution and the nation’s civil rights laws bar both public and private colleges and universities from using any consideration of race in choosing which students are offered admission.

The court majority made clear that it agreed with Students For Fair Admissions, which sued Harvard and UNC, claiming, among other things, that the schools discriminated against Asian American students who had SAT and grade scores higher than any other racial group, including whites, and who made up, at Harvard, for instance, 29% of the entering class last year. SFFA asserted that the number should have been higher than that, though Asians are just 7.2 per cent of the U.S. population.

Harvard, in defending its current iteration of affirmative action, noted that each class has only 1,600 slots, but, by the numbers, it has thousands of equally qualified applicants. In the class of 2019, for instance, it had 35,000 applicants, 3,700 of them with perfect math SAT scores; 2,700 with perfect verbal SAT scores, and more than 8,000 with perfect grade point averages. There are no similar figures for the most recent incoming class at Harvard, but the number of applicants in 2023 has nearly doubled in the last four years.

The reaction to Thursday’s decision may be consternation in some quarters, but public opinion on affirmative action is not like abortion, a subject on which virtually every poll shows the public completely at odds with the court. Public opinion on affirmative actions is more nuanced and more mixed. Polls on the subject conflict: some show upwards of 60% approval for affirmative action programs, and others show less than 50% support.

Indeed, in liberal California, for instance, 57% of voters in 2020 cast their ballots against reinstating affirmative action in the state’s public colleges and universities.

Generally, polls show that public support for affirmative action has grown in recent years, but voters are conflicted on the subject, with the outcome depending on how the question is asked. A recent Washington Post-Schar School Poll found that 6 in 10 Americans say race should not be considered in college admissions. But when the question was asked a slightly different way, the numbers showed big majorities endorsing programs to boost racial diversity on campuses.

And yet no alternative to affirmative action has worked as well as some consideration of race.

College admission administrators say schools that have tried to raise the numbers of black and Latin0 students without any consideration of race have found that no other criterion — class, or economic status, or programs like a guarantee of admission for students in the top 5 or 10% of their high school class–works as well.

“The research is exceptionally clear,” University of Texas professor Stella Flores, whose specialty is higher education and public policy, told NPR in an interview last fall. “There’s no other alternative method that will racially diversify a student body, other than the use of race as one factor of consideration.”

This story will be updated.