[NOTE: This article has been updated with the most recent legal analysis of the majority opinion of the Court.]
In a 6-3 vote, the Supreme Court ruled Thursday that racial preferences in admissions programs for colleges and universities violate the “equal protection” clause of the 14th Amendment. The decision reigns in unchecked “affirmative action” for institutions of higher education in the United States.
Students for Fair Admissions vs. the President and Fellows of Harvard College – which included a sister-suit against the University of South Carolina – overturns several previous decisions that had allowed colleges and universities to practice race-based affirmative action under strict conditions.
Chief Justice John Roberts wrote for the majority, noting that:
It is far from evident… how assigning students to … racial categories and making admissions decisions based on them furthers the educational benefits that the universities claim to pursue.
He added that affirmative action programs are demeaning to the very students they purport to serve, quoting Miller vs. Johnson (1995):
When a university admits students “on the basis of race, it engages in the offensive and demeaning assumption that [students] of a particular race, because of their race, think alike.”
In a concurring opinion, Justice Clarence Thomas agreed, stating that affirmative action “locks blacks into a seemingly perpetual inferior caste” and “is an insult to individual achievement and cancerous to young minds seeking to push through barriers, rather than consign themselves to permanent victimhood.”
The Case
In 2014, the advocacy organization Students for Fair Admissions (SFFA) brought a pair of lawsuits against Harvard College and the University of North Carolina (UNC), maintaining that both schools have used unconstitutional race quotas in admissions. The Supreme Court heard oral arguments for the case in 2022.
SFFA charged Harvard with discrimination against Asian applicants to achieve “racial balancing” in violation of Title VI of the Civil Rights Act. The original complaint argued that “Harvard’s racial preference for each student (which equates to a penalty imposed upon Asian-American applicants) is so large that race becomes the ‘defining feature of his or her application.’”
A First Circuit Court previously “found that Harvard’s consideration of race has led to an 11.1% decrease in the number of Asian-Americans admitted.”
UNC, SFFA contended, violated the 14th Amendment’s equal protection clause in its admissions process by relying on race alone in order to achieve its “diversity” goals.
The “Pernicious Stereotype”
In his opinion, Chief Justice Roberts noted that the “opaque racial categories” the schools use to evaluate student applications – Asian, Native Hawaiian or Pacific Islander, Hispanic, White, African American, and Native American – are in turn “imprecise” and “underinclusive.”
When asked at oral argument “how are applicants from Middle Eastern countries classified, [such as] Jordan, Iraq, Iran, [and] Egypt,” UNC’s counsel responded, “I do not know the answer to that question.”
Roberts also accuses Harvard and UNC of stereotyping, specifically “the pernicious stereotype that ‘a black student can usually bring something that a white person cannot offer.’”
Roberts also noted the Court’s frustration with Harvard and UNC’s legal counsels’ responses to criticisms of race-based admissions, saying,
The universities’ main response to these criticisms is, essentially, “trust us.” None of the questions recited above need answering, they say, because universities are “owed deference” when using race to benefit some applicants but not others.
He noted that both UNC and Harvard practice “outright racial balancing,” which is “patently unconstitutional.”
Again quoting Miller, Roberts reminded Americans that “[a]t the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.”
A “Troubling” Dissent
Roberts also addressed the dissenting justices’ arguments in his opinion. He called it “troubling” that while Justices Sonia Sotomayor and Ketanji Brown Jackson “would certainly not permit university programs that discriminated against black and Latino applicants, [they are] perfectly willing to let the programs here continue.”
“This Court,” he surmised, “is supposed to tell state actors when they have picked the right races to benefit. Separate but equal is ‘inherently unequal,’ said Brown vs. the Board of Education. It depends, says the dissent.”
Public Opinion Concurs
According to a recent SCOTUSPoll survey, the overwhelming majority of Americans oppose race-based affirmative action in admissions for colleges and universities.
Even among self-identified Democrats, 58% of respondents agreed that private schools and 60% agreed that public schools should “not be able to use race as a factor in admissions.” Among Republicans, those figures were 78% and 88%, respectively.
Biden Responds
President Biden held a press conference following the decision at which he stated the decision was “a severe disappointment to so many people, including me…. We cannot let this decision be the last word.”
As he exited the press conference, a reporter shouted, “Is this a rogue court?”
Biden paused before answering, “This is not a normal court.”
