The Supreme Court ruled Thursday that the race-conscious admissions policies of Harvard University and the University of North Carolina at Chapel Hill violate the Equal Protection Clause of the 14th Amendment.
“The Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. Both programs 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. We have never permitted admissions programs to work in that way, and we will not do so today,” wrote Chief Justice John Roberts for the six-justice majority.
However, universities may still consider an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. Roberts clarified that this does not mean universities can simply establish through application essays or other means the regime declared unlawful by the Court. It means, explained Roberts, “the student must be treated based on his or her experiences as an individual—not on the basis of race.”
The cases were filed in 2014 against by Students for Fair Admissions (SFFA). The group, led by the conservative activist Edward Blum, contended that the existing precedent on affirmative action — Grutter v. Bollinger — ought to be overruled and the race-conscious admissions of Harvard and UNC be invalidated.
Grutter, decided in 2003, upheld the race-preferential admissions policies of the University of Michigan Law School. That case largely upheld an earlier precedent — Regents of the University of California v. Bakke — that allowed the consideration of race in admissions as long as a racial quota system wasn’t instituted. Justice Sandra Day O’Connor held in Grutter that the Equal Protection Clause did not prevent Michigan from using race-conscious admissions to further a compelling interest — namely, diversity.
In SFFA’s view, Grutter was a grievously wrong decision that goes against the 14th Amendment and has led to significant negative consequences. On the other hand, the universities urged the Supreme Court to keep Grutter as precedent, arguing they have a strong interest in ensuring a diverse student body and that significant disruption would be caused by an adverse ruling.
While Roberts did not explicitly say Grutter was overturned, Justice Clarence Thomas wrote in a concurring opinion that “the Court’s opinion rightly makes clear that Grutter is, for all intents and purposes, overruled.”
Justice Kavanaugh put it slightly differently in his own concurring opinion, arguing the Court abided by its own precedents in Thursday’s ruling: Grutter had imposed an explicit temporal limit of 25 years on the use of race-based affirmative action in higher education.
The liberal justices dissented in both cases. Justice Ketanji Brown Jackson only took part in the UNC case as she had been on Harvard’s board of overseers.
Justice Sonia Sotomayor wrote in dissent that the majority “cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.” Jackson argued that “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.”
Roberts retorted that whereas Brown v. Board of Education held that separate but equal is “inherently unequal,” the dissenters say: “It depends.”
“Eliminating racial discrimination means eliminating all of it,” Roberts added.
According to the chief justice, the universities had failed to comply to the twin commands of the Equal Protection Clause: that race may never be used as a negative and that it may not operate as a stereotype.
“Both experience and logic have vindicated the Constitution’s colorblind rule and confirmed that the universities’ new narrative cannot stand,” Thomas said in his concurrence.
In the UNC case, SFFA claimed that the public university discriminated on the basis of race even though it could have achieved diversity by other means. In the Harvard case, SFFA claimed that the university discriminates against Asian Americans, explaining that they are less likely to receive offers than students of other races who are similarly qualified. The group argued Harvard violated Title VI of the Civil Rights Act, which bars entities that receive federal funding from discriminating on the basis of race.
In a concurring opinion, Justice Gorsuch provided supplementary analysis on why affirmative action violates Title VI in addition to the Equal Protection Clause, challenging dissenters Sotomayor and Elena Kagan to follow the Court’s precedent in the Bostock case.
In both of the cases, the lower court judges ruled for the universities, upholding their respective admissions policies. Judge Allison Burroughs ruled that Harvard did not intentionally discriminate against Asian Americans and was affirmed by the First Circuit in appeal. Judge Loretta Biggs explained that UNC only uses race as a “plus factor” in admissions and that the university does not have any other practical alternatives.
However, as Gorsuch puts it, “the trial records reveal that both schools routinely discriminate on the basis of race when choosing new students.” Gorsuch also countered the argument there are no other alternatives by pointing to the space that would be opened if universities lowered spots reserved for legacy admits or recruited athletes.
To Thomas, “universities’ self-proclaimed righteousness does not afford them license to discriminate on the basis of race. In fact, it is error for a court to defer to the views of an alleged discriminator while assessing claims of racial discrimination.”
The Biden administration backed Harvard and UNC in an amicus brief and noted that many other government institutions rely on race-conscious admissions, such as the U.S. military academies.
Roberts clarified that his majority opinion does not address race-conscious admissions in the nation’s military academies “in light of the potentially distinct interests that military academies may present.”
Thomas concluded his concurrence with a note on equality before the law.
“While I am painfully aware of the social and economic ravages which have befallen my race and all who suffer discrimination, I hold out enduring hope that this country will live up to its principles so clearly enunciated in the Declaration of Independence and the Constitution of the United States: that all men are created equal, are equal citizens, and must be treated equally before the law,” Thomas wrote.