After Affirmative Action

The Supreme Court Upends Admissions

Students protest the Supreme Court decision.

The Supreme Court, in a decision announced June 29, banned race-conscious admissions at both public and private institutions of higher education, ruling the practices at Harvard and the University of North Carolina (UNC) unconstitutional and overturning precedents dating from 1978.

In a letter to members of the community that day, University leaders wrote that the Court had held that “Harvard College’s admissions system does not comply with the principles of the Equal Protection Clause embodied in Title VI of the Civil Rights Act,” and said they will comply with the ruling. The letter nevertheless affirmed that “debate and disagreement, diversity and difference are essential to academic excellence. To prepare leaders for a complex world, Harvard must admit and educate a student body whose members reflect, and have lived, multiple facets of human experience.” “In the weeks and months ahead,” the letter continued, “drawing on the talent and expertise of our Harvard community, we will determine how to preserve, consistent with the Court’s new precedent, our essential values.”

In a separate video message, Claudine Gay, president-elect (who would take office two days later), said, “We will comply with the Court’s decision, but it does not change our values. We continue to believe—deeply—that a thriving, diverse intellectual community is essential to academic excellence and critical to shaping the next generation of leaders.”

The widespread commitment to diversity and inclusion at colleges and universities is expected to lead them to pursue ways to fulfill that commitment, which may lead to further litigation about related issues raised by the ruling. “Universities may define their missions as they see fit,” the Court’s majority opinion asserted: “The Constitution defines ours.”

The Ruling and the Dissent

Chief Justice John G. Roberts Jr. ’76, J.D. ’79, writing for that majority, declared that the Harvard and UNC admissions programs could not continue because they did not survive the “daunting two-step examination” of strict scrutiny: whether the use of race in admissions serves compelling governmental interests; and, if it does, whether it is narrowly tailored, or necessary, to achieve those interests. Harvard’s goals are training future leaders, preparing them for an increasingly diverse society, better educating them through learning alongside students with diverse backgrounds and outlooks, and producing knowledge with the catalyst and confluence of those diverse outlooks. Roberts wrote that those interests and UNC’s similar ones, while “commendable goals,” can’t “be subjected to meaningful judicial review” because “they are not sufficiently coherent,” “imprecise in many ways,” and “plainly overbroad.” In this, the Court diverged from its prior rulings about similar programs.

Joined by the five other conservative justices, Roberts wrote that the Equal Protection Clause commands “that race may never be used as a ‘negative’….” He contended that because “College admissions are zero-sum,” “A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.”

To the chief justice, penalizing applicants on the basis of race or, on the other hand, rewarding them for that reason, are both discrimination. Any plus factor for an applicant because of race not given to other applicants is a penalty, and a negative, for the others. Harvard’s counsel had argued that the former—often called invidious discrimination—is categorically different from the latter, which is called affirmative action to make plain that difference.

Roberts’s opinion addresses this issue as the primary basis for the Court’s decision: “[T]he ‘core purpose’ of the Equal Protection Clause,” he wrote, is “do[ing] away with all governmentally imposed discrimination based on race.” “‘If both are not accorded the same protection,’” he wrote, quoting from the opinion of Justice Lewis F. Powell Jr., LL.M. ’32, in the 1978 Bakke case (which permitted Harvard to consider race in holistic review of applicants), “‘then it is not equal.’”

That view is one of the defining themes of Roberts’s 18 years on the Court. In a 2007 opinion, he wrote, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Justice Sonia Sotomayor, writing in a 2014 case when the Court upheld a Michigan constitutional amendment that bans race-consciousness in admissions in the state’s public universities, seemed to retort to the chief justice: “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.” In her dissent in the Harvard case, joined by Justice Elena Kagan, J.D. ’86, Sotomayor does all of that. (Justice Ketanji Brown Jackson ’92, J.D. ’96, recused herself because she was a Harvard Overseer while the case worked its way through lower federal courts but joined the dissent as it applied to UNC.)

The Sotomayor dissent underscores that the dispute between the majority and dissenting justices is about decisively important history as much as law, about fundamental facts as much as history, and, crucially, about the significance of the Court’s ruling.

Sotomayor explained in detail how she believes the majority opinion whitewashes the history of the Fourteenth Amendment, twists the meaning of Brown v. Board of Education, and overturns 45 years of Supreme Court precedent allowing race-conscious admissions practices by colleges and universities—while pretending not to. The differences of opinion about law held by the majority and the minority reflect differences in understandings about America’s purpose—about what equality means for all Americans.

“Today…,” she wrote, “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.”

The majority’s view, she continued, is “grounded in the illusion that racial inequality was a problem of a different generation” rather than “a reality today.” She observed, “Ignoring race will not equalize a society that is racially unequal. What was true in the 1860s,” when the Fourteenth Amendment was written, “and again in 1954,” when Brown v. Board of Education was decided, “is true today: Equality requires acknowledgment of inequality.”

About Harvard’s and UNC’s race-conscious admissions programs, she wrote: “Acknowledging the reality that race has always mattered and continues to matter, these universities have established institutional goals of diversity and inclusion. Consistent with equal protection principles and this Court’s settled law, their policies use race in a limited way with the goal of recruiting, admitting, and enrolling underrepresented racial minorities to pursue the well-documented benefits of racial integration in education.”

Accordingly, she judged, “without any new factual or legal justification, the Court overrides its longstanding holding that diversity in higher education is of compelling value. To avoid public accountability for its choice, the Court seeks cover behind a unique measurability requirement of its own creation.”

In an analysis of the opinions for Harvard Magazine, legal journalist Lincoln Caplan ’72, J.D. ’76, wrote that thedifference between the opinions makes it seem as though the United States now has two Constitutions. In the Constitution favored by the Supreme Court’s six-member majority in the admissions cases, the Fourteenth Amendment prohibits government from drawing lines based on race. In the other Constitution, embraced by the Court’s three-member liberal minority, the Fourteenth Amendment established a mandate for equal protection of the law, not for color-blind policies. It recognizes a profound difference between exclusion and inclusion, between seeking to perpetuate a racial caste system through discrimination and seeking to help eradicate racial subordination and its persistent afterlife through positive race-conscious practices. Read Caplan’s complete analysis at harvardmag.com/aa-analysis-23.

Reaction on Campus

Two days after the Court’s ruling, some Harvard students, alumni, and members of the public rallied in opposition to the decision. “When the Supreme Court declared on Thursday that educational diversity was a commendable goal, but one that needed a color-blind interpretation of the law,” Zoha Ibrahim ’26 told more than 100 demonstrators, “they painted a vision of an America that does not exist.”

Several speakers emphasized continuing racial disparities in the United States. “Despite what the Supreme Court thinks, minority groups in America…will always be at a disadvantage, regardless of their economic status,” Sydney Wiredu ’26 told the crowd. Others denounced Students for Fair Admissions (SFFA—the organization that brought the lawsuits against Harvard, claiming discrimination against Asian American applicants) as an organization that “pits people of color against each other.” “I will not remain silent,” said Rebecca Zhang ’26, “as they try to use Asian Americans as a racial wedge, or their model minority.”

Statements from campus organizations representing diverse groups flooded social media and email lists: “The elimination of race in race-conscious admissions is an erasure of our stories, contributions, and selves,” the Harvard Black Students Association’s statement read; the Harvard-Radcliffe Asian American Women’s Association wrote that the Court’s ruling reveals “their lack of commitment to a more just society” and “their role in upholding racial hierarchies and stereotypes.” For more on the student reaction see harvardmag.com/rally-scotus-23.

Amending Admissions

The Court’s decision in the cases will likely prompt significant changes in admissions practices at Harvard, UNC, and other selective institutions that have pursued student-body diversity through affirmative action. Institutions in states like California that banned affirmative action—notably, the University of California, Berkeley—found that their student bodies became less racially diverse (sometimes significantly so), and that actions they have taken to maintain such diversity have had limited success. (Given the diversity selective institutions have achieved under the now-outlawed admissions practices, the challenge of sustaining anything like it looms large. Among applicants admitted to the class of 2027, for example, Harvard College reported that 29.8 percent are Asian Americans; 14.1 percent African Americans; 11.1 percent Latinx; and 2.3 percent Native Americans and Native Hawaiians so far.)

In the case of large state institutions—the University of Texas at Austin is often cited—there is an arithmetic workaround. Because K-12 public schooling is controlled locally, and in many cases districts are segregated, a rule granting admission to the top 10 percent, say, of graduates from each high school yields a certain amount of diversity. Modified versions of such strategies are cropping up at other flagship institutions, or ones with an applicant pool weighted by geography. The University of Virginia is deploying extra admissions counselors to 40 state high schools from which it has drawn few applicants. Duke announced a tuition-free program for North and South Carolina students from families below certain income thresholds (about 18 percent of its undergraduates are from those two states). UNC unveiled a similar program, and more emphasis on reaching out to under-resourced communities, in early July. Such programs may increase the racial and socioeconomic diversity of the schools’ applicant pools.

Such strategies wouldn’t readily apply to institutions like Harvard, which draw tens of thousands of applicants from around the country and indeed around the globe, and typically admit students from widely dispersed locales.

So admissions officers and general counsels at such elite institutions are no doubt paying close attention to Chief Justice Roberts’s language; he wrote, “[N]othing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” However, he continued, “universities may not simply establish through application essays or other means the regime we hold unlawful today.” Elaborating on the Court-approved path, he wrote, “A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination.…In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race.”

That suggests admissions reviews more heavily focused on individual applicants’ essays; decreased reliance on standardized test scores (currently in abeyance for Harvard College applicants through the class of 2030, as a pandemic accommodation); and increased investment in admissions recruiting in under-resourced communities.

There is also wide discussion in higher education about rethinking the effects of other admissions preferences—for athletes, relatives of donors, children of faculty and staff, and for legacies (children of alumni)—all of which may, for historical reasons, depress diversity in admissions. Stay tuned for new approaches from Harvard, and throughout higher education, ranging from some variation on the above, to more sweeping approaches to admissions based on socioeconomic class. So long as colleges and universities remain gateways to opportunity, the focus on who is admitted, and how and why, will remain intense.

For background on affirmative action in higher education, and the current litigation, see harvardmag.com/ruling-23.

Read more articles by: Jonathan Shaw or Lincoln Caplan

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