Supreme Court Officially Ends Affirmative Action in Higher Education

On Thursday, the United States Supreme Court put the final nail in the coffin of affirmative action. In a divided decision, the Court ruled that colleges and universities can no longer consider race as a specific basis for granting admission, ending a decades-long debate over the legality of affirmative action policies.

Affirmative action programs have been around since the 1960s, under which universities have considered race as a factor in student admissions. The programs came about to benefit Black and Latino students in higher education and to counter historical discrimination at selective institutions. Many long-standing universities had a sordid history of admitting only White students before affirmative action programs and other changes to the national zeitgeist came about.

Affirmative action and other diversity-promoting programs have been a point of political contention for decades. The Court has weighed in more than once, ruling against racial “quotas” and other “hard” number-based admissions and diversity policies. In 2003, the Court held in Grutter v. Bollinger that, although racial quotas were a step too far, universities could still consider race in admissions because they had a “compelling interest in obtaining the educational benefits that flow from a diverse student body.” The Grutter majority opinion, however, foretold the ultimate end of affirmative action, stating that “race-conscious admissions policies must be limited in time.”

Now, in the companion cases Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, the Court has effectively overruled Grutter. The Court ruled that admission programs at Harvard and the University of North Carolina violate the Equal Protection Clause because they “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.”

Chief Justice John Roberts delivered the 6-3 majority opinion, with liberal justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson dissenting. The majority characterized affirmative action admissions programs as a zero-sum game between students of different races; promoting such policies would entail “a judiciary that picks winners and losers based on the color of their skin.” The majority criticized the dissent for ostensibly encouraging the Court “to tell state actors when they have picked the right races to benefit.”

In her dissent, Justice Sotomayor stated the opinion “rolls back decades of precedent and momentous progress.” The majority decision “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 Jackson criticized the majority for ignoring the reality of the country’s treatment of different races: “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.” The ruling was so controversial that the justices took the unusual step of reading their dissents from the bench.

The ruling did not completely eliminate race as a factor in all higher education admission decisions. Admissions officials may still consider an individual student’s life experience, even insofar as race is concerned. According to the majority: “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.” A student might, for example, write an admissions essay discussing their personal experience with racial discrimination.

Moreover, although the ruling applies to both public and private universities, it exempts U.S. military academies. In a footnote, the Court makes clear that the decision “does not address” the use of race in admissions at military schools, “in light of the potentially distinct interests that military academies may present.”

Legal commentators opposing the decision worry about the possible snowball effect. Although the decision technically applies only to higher education, similar reasoning might be used to challenge diversity, equity, and inclusion (DEI) programs in the employment context. Opponents of DEI initiatives might begin quoting language in the decision to challenge not only hiring policies but diversity training and other race-conscious programs. The full implications of the decision remain to be seen.