August 2023 | Volume 15, Issue 1

Read the full article from NPR.

According to the article, in a historic decision, the United States Supreme Court effectively ended race-conscious admission programs at colleges and universities across the country. In a decision divided along ideological lines, the six-justice conservative super-majority invalidated admissions programs at Harvard and the University of North Carolina.

The decision reverses decades of precedent upheld over the years by narrow Supreme Court majorities that included Republican-appointed justices. It ends 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 affirmative action programs, wrote the decision for the court majority, saying that the nation's colleges and universities must use colorblind criteria in admissions.

"Many universities have for too long... 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," he wrote. "Our constitutional history does not tolerate that choice."

Justice Clarence Thomas took the unusual step of reading from the bench parts of his lengthy concurring opinion.

The decision, he wrote, "sees the universities' admissions policies for what they are: rudderless, race-based preferences. ... Those policies fly in the face of our colorblind Constitution."

As he has done before, Thomas, the second black justice appointed to the court, reiterated his long-held view that affirmative action imposes a stigma on minorities. "While I am painfully aware of the social and economic ravages which have befallen my race and all who suffer discrimination, I hold our enduring hope that this country will live up to its principles that ... all men are created equal, are equal citizens, and must be treated equally before the law."

Roberts, for his part, pointed to the court's 2003 decision reaffirming the constitutionality of affirmative action programs, noting that Justice Sandra Day O'Connor, writing for the court at the time, had suggested that there would have to be an end at some future point. That time has now come, Roberts said.

"It feels tragic," said Columbia University President Bollinger, who has for 30 years been a leading proponent of affirmative action programs.

"It feels like the country has been on a course of choosing between a continuation of the great era of civil rights, and another view of 'We've done this long enough, and we need a whole new approach.' It's now the second choice."

That sentiment echoed Justice Sonia Sotomayor's dissent.

"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," she wrote.

Justice Ketanji Brown Jackson, the court's first Black female justice, also chimed in, saying: "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."

Indeed, the reality is that in those places where affirmative action has been eliminated, there has been a severe drop in minority, and particularly, African American, admissions. NYU law professor Melissa Murray was the acting dean at the University of California Berkeley in 2016 and 2017 when a state referendum barred the use of race in college admission decisions.

"There was an immediate drop off in the number of African American students that was both a confluence of the change in the admissions policy, but also African American students not wanting to go [to Berkeley] under those conditions," she said. "People don't want to be spotlighted. There is a kind of comfort in numbers, and it was very difficult for a very long time to recruit under those conditions."

Indeed, the situation got so bad, she says, that she had to go to the president of the state university system to get permission to place clusters of African American students in classes, instead of "sprinkling them around," leaving minority students alone to speak their mind when subjects of race were discussed.

Now every school will be in that situation, or so it may seem.

The court did not entirely close the door to racial considerations in college admissions. As Roberts put it, "Nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life." Nor did the court address the tactic of clustering minority students in classes.

What's more, the court specifically left open the possibility that the nation's military academies, because of their "distinct interests," may be able to continue with their successful affirmative action programs, which have resulted in a very diverse officer corps.

"That issue is so sensitive because it raises the question of national security that the court has backed away from following its own logic," said University of California Berkeley professor Jerome Karabel.

He notes that a similar logic might apply to police forces seeking to recruit minorities so as to ensure that a virtually all white force would not be policing a majority Black town.

For the nation's colleges and universities, however, diversity will no longer be an acceptable rationale for taking race into account.

The 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.

Ultimately, effects will be felt in every aspect of the nation's economic, educational, and social life--from the Rooney rule that requires a minority applicant be considered in all NFL coach hiring decisions to employment and promotion decisions, DEI programs in schools and workplaces, and much more.

"We're going to be fighting about this for the next 30 years," said Harvard law professor Randall Kennedy.

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.

UC's Karabel notes that there are already employment lawsuits pending, and "by the logic of this decision, I would think that racial discrimination, as defined by the court, would be banned in employment as well."

"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 now, when the court — as it did last year in the abortion case — upended decades of its own precedents.

The court majority made clear that it agreed with Students For Fair Admissions (SFAA), 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 percent of the entering class last year. SFFA asserted that the number should have been higher than that, though Asians are just 7.2 percent 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 the 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 action is more nuanced and more mixed. Polls on the subject conflict: some show upwards of 60 percent approval for affirmative action programs, and others show less than 50 percent support.

Indeed, in liberal California, for instance, 57 percent 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 slightly differently, 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 Latino 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 percent or 10 percent 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."

Harvard's Professor Kennedy points to what he calls “double talk” in the Supreme Court's opinion. Take two signs, he says: a sign that says "Black people stay out," and contrast it with a sign that says "Black people welcome."

"Both have race in them. Are they truly both racially discriminatory? The Supreme Court, at least on one side of its mouth, seems to say yes, they're both racially discriminatory. But at the end of the Supreme Court's opinion, it says, well of course one can look favorably on someone who's overcome racial impediments."

"I think we are at a very critical point," said Columbia President Bollinger, who, earlier in his career, shaped the affirmative action program at the University of Michigan, a program that was upheld in 2003. He sees the landscape of admissions systems now shifting markedly, with "the demise" of school rankings, and less emphasis on standardized test scores. Columbia, he notes, has more veterans than any other Ivy League college. "I think there will be a lot of experimentation in admissions, as there should be over the next decade."

The magnitude of the decision was emphasized by the fact that, in all, six justices wrote separately. And three justices spoke for more than 40 minutes from the bench--the chief justice in the majority, Thomas concurring, and Sotomayor in dissent. Indeed, in print, the Supreme Court's decisions, plus dissents and concurrences, reached a book-sized 237 pages.

Race has never been any easy subject for Americans to deal with, and it is about to get a lot harder.

Discussion Questions

  1. Define affirmative action.
    With regard to higher education, affirmative action generally refers to admissions policies aimed at increasing the number of Black, Hispanic and other minority students on campus. Colleges and universities that take race into consideration have said they do so as part of a holistic approach that reviews every aspect of an application, including grades, test scores and extracurricular activities. 

    The goal of race-conscious admissions policies is to increase student diversity in order to enhance the educational experience for all students.
  2. Consider the following quote from Chief Justice John Roberts, who wrote the opinion for the majority in this case:

    "Many universities have for too long... 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."

    Also consider the following quote from Justice Ketanji Brown Jackson, the United States Supreme Court's first Black female justice, who dissented from the majority decision: "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."

    Do you agree with Chief Justice John Roberts, or Justice Ketanji Brown Jackson? Explain your response.

    This is an opinion question, so student responses will likely vary.

    In your author’s opinion, it is interesting that Chief Justice Roberts uses the term “touchstone” in referring to the relationship between race, affirmative action, and an individual’s identity. A “touchstone” is defined as a standard or criterion by which something is judged or recognized; it is a benchmark or a “litmus test.” Surely Chief Justice Roberts understands that in an affirmative action program, race is only one of many factors an educational institution considers in the admissions process.

    Other factors include the “challenges bested, skills built, (and) lessons learned” to which he refers. These include educational accomplishments, extracurricular activities, test scores, life experiences, etc. In your author’s opinion, race was never intended to be “the” touchstone of an admissions decision.

    Your author finds the dissent of Ketanji Brown Jackson compelling, particularly in her suggestion that “colorblindness for all” cannot be declared by “legal fiat.” (fiat is a Latin term for “let it be done.”) Justice Brown’s suggestion that deeming race irrelevant in law does not make it so in life suggests that there is still more work to be done in terms of realizing truly equal opportunity for all, and that affirmative action programs can assist in achieving such progress.
  3. As the article indicates, with this decision, the United States Supreme Court has upended decades of its own judicial precedents regarding affirmative action. What is judicial precedent? In your opinion, what is the best argument for supporting judicial precedent? What is the best argument for overturning judicial precedent?

    Judicial precedent refers to a court decision that is considered as authority for deciding later cases involving identical or similar facts, or similar legal issues. Judicial precedent is incorporated into the doctrine of stare decisis (a Latin term for “to stand by things decided”), and requires courts to apply the law in the same manner to cases with the same (or similar) facts.

    In terms of the opinions solicited in response to this question, student responses may vary.

    In your author’s view, the best argument for supporting judicial precedent is based on judicial economy, as well as the expectations (of litigants and the public at large) that are based on the precedent. The best argument for overturning judicial precedent is based on the notion that times have changed and that as a result, the law must be modified to account for that change. Notice that Chief Justice Robert’s rationale in overturning affirmative action is not so much based on that reasoning as it is based on the notion that affirmative action is bad policy.

    In your author’s opinion, Justice Roberts is admonishing previous iterations of the United States Supreme Court that supported affirmative action, contending that they “got it wrong” in terms of using race as “the touchstone” of college and university admissions decisions.