The U.S. Supreme Court ruled Thursday on two landmark cases challenging affirmative action in higher education, ending decades of expanded access to college education for students of color and overturning decades of precedent. Chief Justice Roberts' opinion for the court held that Harvard University and the University of North Carolina’s race-conscious admissions policies violate the equal protection clause. The UNC case was decided 6-3 and the Harvard case 6-2, with Justice Ketanji Brown Jackson recusing herself.
Roberts seemingly ends the possibility of any meaningful racial considerations in admissions in his opinion, writing that the schools’ 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, those admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause.”
“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,” Roberts wrote. “This Nation’s constitutional history does not tolerate that choice.” This nation’s constitutional history on race is a problematic thing for Roberts to invoke in overthrowing this precedent.
In dissent, Justice Sonia Sotomayor is livid:
Today, this Court stands in the way and rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits. In so holding, the Court 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. Because the Court’s opinion is not grounded in law or fact and contravenes the vision of equality embodied in the Fourteenth Amendment, I dissent.
The cases were brought by Students for Fair Admissions, a membership organization that claims to represent about 20,000 students and parents. It was founded by conservative former stockbroker and current lawsuit manufacturer Edward Blum, who has a long history of activism in racist policy. You can thank Blum for Shelby County v. Holder, the case that gutted the Voting Right Act. These suits, SFFA v. UNC Chapel-Hill and SFFA v. Harvard, were both filed in 2014, brought to challenge programs at both public and private institutions.
The question in UNC Chapel Hill was whether its program violated the 14th Amendment's guarantee to equal protection of the law. Though Harvard is private, it receives federal funding for a variety of programs and thus is covered by federal anti-discrimination laws. Both schools defended their admissions programs, arguing that they are in line with previous court rulings that allow for the consideration of race along with other factors like academic performance, athletic and extracurricular achievements, and legacy status. The schools argue using race as one factor is critical to ensuring that all students at their institutions benefit from a rich and diverse college environment.
In fact, Harvard University was cited by Justice Lewis Powell as the model for affirmative action in the 1978 case establishing the constitutionality of race-based admissions, Regents of the University of California v. Bakke. Powell wrote that "in choosing among thousands of academically qualified applicants," a university's admissions committee may "with a number of criteria in mind," pay "some attention to distribution that should be made among many types and categories of students."
The court upheld that decision in 2003 in combined cases Gratz v. Bollinger and Grutter v. Bollinger and again in 2016 in Fisher v. University of Texas. Blum bankrolled the Fisher case as well, while he was also sponsoring the litigation in todays’ cases. The particularly pernicious aspect of the Harvard and UNC cases is that Blum used them purposely to pit people of color against each other. After his loss in Fisher, he publicly surmised that he “needed Asian plaintiffs.” Thus, SFFA was born.
The hostility of this court toward affirmative action was made clear in the oral arguments last fall. “I’ve heard the word diversity quite a few times, and I don’t have a clue what it means,” Justice Clarence Thomas groused. “It seems to mean everything for everyone.” Justice Samuel Alito likewise pretended he was unfamiliar with the idea of an “underrepresented minority.” As if the words weren’t self explanatory. “What does that mean?” he asked.
Both Harvard and the SFFA hired economists to evaluate the 2019 class of Harvard to simulate what it would look like if race couldn’t be considered a factor in admissions. The Harvard economist determined that the class would have been 9% Hispanic rather than 13%, and 6% Black as opposed to 14% under affirmative action.
In the arguments in the cases, U.S. Solicitor General Elizabeth Prelogar argued for the universities, pointing out what ending the admissions process would mean for higher education. “When students of all races and backgrounds come to college and live together and learn together, they become better colleagues, better citizens and better leaders,” she said.