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U.S. Supreme Court Rules Against Affirmative Action

An Overview of the Supreme Court’s Decision

On June 29, 2023, the U.S. Supreme Court effectively struck down affirmative action and race-conscious admission processes in Students for Fair Admissions v. President and Fellows of Harvard and Students for Fair Admissions v. University of North Carolina. In the decision that race can no longer be a deciding factor in higher education admissions, the court deemed the consideration of race in admissions as unlawful and discriminatory, even when reviewed as just one factor out of many. Although applicants can write about overcoming adversity by confronting racial discrimination in essays and other written statements, institutions will face numerous challenges in cultivating a diverse student population. The ‘race box’ seen historically on college applications will no longer be allowed, presenting a barrier to entry for institutions that aim to promote and ensure educational diversity.


The 6-3 divide on the Supreme Court ruling was split across ideological lines. With over two-hundred pages of opinions by the justices, the ruling was an enormous decision in terms of scope and precedent. Authored by Chief Justice Roberts, the majority opinion acknowledges educational diversity–the direct result of affirmative action programs–as a commendable goal but argues that any resulting diversity is immeasurable. The majority, therefore, argues that affirmative action does not demand nor satisfy judicial or strict scrutiny. Chief Roberts also outlines the negative consequences of affirmative action programs, including the perpetuation of racial stereotypes and favoring some racial groups while discriminating against others. It should be noted that all public universities and private universities that receive federal money are legally compelled to abide by federal civil rights laws, including this decision. However, the majority opinion states that military academies will be exempt from its ruling ‘in light of the potentially distinct interests they may present’ on the constitutional basis of national security interests. Justice Sotomayor, on the other hand, wrote a scathing dissent arguing that giving historically disadvantaged minorities the opportunity to attend elite institutions is not only appropriate but also should be actively encouraged. Additionally, she states that the Court’s majority is blind to American history and to the constitutional promise of equal protection as a race-conscious policy rather than a color-blind principle.


What is Affirmative Action?


First upheld in the 1978 Supreme Court Case, Regents of the University of California v. Bakke, affirmative action programs were initially justified as a method to right past wrongs and repair the injustices that minorities have suffered throughout history. However, the justification of affirmative action was clarified in the most recent Supreme Court case to be educational diversity. Affirmative action programs seek to address racial discrimination by recognising that underrepresented students have historically been denied access to higher education and allow admission teams to consider race in the admissions process. Race-conscious admission practices help create a diverse student body that is beneficial to all students and faculty. Elizabeth B. Prelogar, the U.S. solicitor general, argued in support of the universities in both cases when she said ‘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.’ The Supreme Court’s ruling overturns decades of precedent on affirmative action, most notably a 2003 decision in which the Court endorsed holistic admissions programs that consider race as a factor and Fisher v. University of Texas (2016), where the Court upheld race as a factor in ensuring educational diversity, and that universities should be given more liberties when devising their admission policies.


Oral Arguments


The cases against Harvard and the University of North Carolina were brought forward by conservative activist Edward Blum and his organisation Students for Fair Admissions (SFFA). Blum and SFFA have organised numerous lawsuits challenging affirmative action and race-conscious admission policies, several of which have been argued before the Supreme Court (e.g. Fisher v. University of Texas).


The oral arguments proposed two questions: what constitutes racial discrimination in college admissions, and does affirmative action violate the Fourteenth Amendment’s guarantee to equal protection of the law? Blum argued that the Equal Protection Clause coupled with existing civil rights legislation ‘forbids the consideration of race in higher education.’ Furthermore, the plaintiffs argued that in giving preference to Black, Hispanic, and Indigenous applicants the University of North Carolina discriminated against White and Asian applicants. In the Harvard case, the plaintiffs also accused the university of discriminating against Asian Americans by using subjective standards in their admissions criteria. However, both universities cited existing Supreme Court precedents when arguing that they were within their rights to create their own admissions policies given that affirmative action programs foster educational diversity. They also emphasised that race-conscious admission programs further the values of equal protection under the Constitution by helping to diminish stereotypes, promoting diversity on college campuses, and improving the ability of students of all races and backgrounds to participate in academia. These oral arguments, in addition to the later majority opinion and the minority dissent, reveal key differences in the interpretation of the Equal Protection Clause and thus beg the question of what the Fourteenth Amendment meant to achieve.


What Does This Mean for College Admissions?


The Supreme Court’s decision will likely make it harder for institutions to be held to high educational diversity standards. In the years to come, college campuses across the US are predicted to see lower Black and Hispanic enrollment rates as not all universities will feel compelled to prioritise educational diversity efforts such as outreach and recruitment initiatives. Although new admissions policies might be hard to police, admissions teams will most definitely be monitored and will likely face continuous litigation efforts.


The Ripple Effects of the Decision on American Society


This decision has far-reaching effects on American society generally, most notably on diversity in the workplace. Elite higher education is an important and recognised pathway to success; with the pipeline for highly qualified minority students to access education opportunities shortening over time, there might be an obvious correlation with fewer minorities in leadership positions in the future. Additionally, this decision could potentially halt employment recruitment efforts for historically disadvantaged groups as corporations might choose to limit diversity, equity, and inclusion (DEI) initiatives. Although diversity efforts are supported by the majority of Americans, it is hard to gauge public support for affirmative action as general opinions do not follow traditional party or racial lines. The disagreement surrounding race-conscious admission practices reveals deeper tensions relating to conversations about race and privilege in America.



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