Supreme Court 'Guts' Affirmative Action

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— Lauren Witzke (@LaurenWitzkeDE) April 5, 2023

The Supreme Court says colleges and universities can no longer take race into consideration as a specific basis for granting admission, a landmark decision overturning long-standing precedent that has benefited Black and Latino students in higher education.

Chief Justice John Roberts wrote the opinion for the conservative majority, saying the Harvard and University of North Carolina admissions programs violated the Equal Protection Clause because they failed to offer "measurable" objectives to justify the use of race. He said the programs involve racial stereotyping and had no specific end point.

"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," Roberts wrote.

The majority opinion claims that the court was not expressly overturning prior cases authorizing race-based affirmative action and suggested that how race has affected an applicant's life can still be part of how their application is considered. But even if the court did not formally end race-based affirmative action in higher education, its analysis will make it practically impossible for colleges and universities to take race into account – as the three Democratic appointees stressed in dissent.

In a lengthy concurrence, Justice Clarence Thomas, the second Black person to join the Supreme Court, spoke in unusually personal terms as he criticized the use of affirmative action policies by colleges and universities, which he described as "rudderless, race-based preferences designed to ensure a particular racial mix in their entering classes."

Strong dissents

"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.

US military service academies exempted from ruling

The ruling says that US military service academies can continue to take race into consideration as a factor in admissions.

In a footnote in the majority opinion, Roberts said that the cases before the court did "not address the issue" and left open the possibility that there are "potentially distinct interests that military academies may present" in a future case.

During oral arguments, Solicitor General Elizabeth Prelogar stressed the unique interests of the military and argued that race-based admissions programs further the nation's compelling interest of diversity.

Jackson called out the caveat in her dissent.

"The court has come to rest on the bottom-line conclusion that racial diversity in higher education is only worth potentially preserving insofar as it might be needed to prepare Black Americans and other underrepresented minorities for success in the bunker, not the boardroom (a particularly awkward place to land, in light of the history the majority opts to ignore)," Jackson wrote.

The group that challenged the Harvard and UNC policies is known as Students for Fair Admissions. The group, led by longtime affirmative action opponent Edward Blum, lauded the decision, saying that it "marks the beginning of the restoration of the colorblind legal covenant that binds together our multi-racial, multi-ethnic nation."

Blum added that his group's lawyers have been "closely monitoring potential changes in admissions procedures" and threatened to "initiate litigation should universities defiantly flout this clear ruling and the dictates of Title VI and the Equal Protection Clause."