The Supreme Court has held that the admissions policies at Harvard and the University of North Carolina “violate the Equal Protections Clause of the 14th Amendment.” Photo by Mariam Zuhaib via AP

Affirmative Action

Supreme Court Guts Affirmative Action in College Admissions, Provides Scant Guidance for Universities

While justices struck down Harvard and UNC admissions policies, “It’s hard to say what this means for other colleges and universities,” LAW’s Jonathan Feingold says

The US Supreme Court delivered a blow to race-based affirmative action policies at colleges and universities on Thursday, holding that the admissions policies at Harvard and the University of North Carolina “violate the Equal Protections Clause of the 14th Amendment.” 

Justices split along their ideological divide in the highly anticipated pair of cases involving the admissions processes at the two schools. The court’s decision rolls back a decades-long practice of considering race as one of many factors in college admissions decisions, and leaves academic institutions with little guidance on how to structure such decisions from here on out. 

“The rulings of the Supreme Court of the United States (SCOTUS)—in cases addressing the admissions practices at Harvard University and the University of North Carolina—are profoundly disappointing because they take us backward, potentially creating less diverse college campuses and a less just America,” Boston University President Robert A. Brown wrote in a letter sent to the University community shortly after the decision Thursday. “These decisions are antithetical to Boston University’s values and mission.”

Brown added that the University would continue to review the decision “to better understand what it means for our admissions and academic practices and the changes we may be required to make.”

The high court’s ruling is specific to the Harvard and UNC policies it considered in these cases, and it’s unclear how other institutions will have to shift their admissions policies as a result.

“It’s hard to say what this means for other colleges and universities because the majority opinion wasn’t all that clear in a lot of important ways,” says Jonathan Feingold, an associate professor of law at the BU School of Law.

However, the decision does make clear that students can still attest, in their application materials, to the ways in which race and racism have affected their specific lives. 

“I wouldn’t take this opinion as a reason to take off the table ever considering race again,” Feingold says. “Colleges and universities may just have to do it in a more careful, defined way than what Harvard and UNC did.”

To that end, Chief Justice John G. Roberts, writing in the majority opinion, notes: “Nothing 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.” In other words, “the student must be treated based on his or her experiences as an individual—not on the basis of race,” he writes. 

This section of the majority opinion in particular is “very interesting,” Feingold says: it may have been an olive branch to Brett Kavanaugh, who, during oral arguments in these cases, expressed discomfort with a ruling that would have suggested students couldn’t talk about their own experiences with race and racism. 

Whether that it was a concession to Kavanaugh or not, Roberts’ inclusion of this line “helps to highlight that the opinion—as grotesquely it perverts history and as zealously wedded it is to this notion of color blindness—the legal import is limited, and universities can continue to think about, talk about, and consider students’ experiences with racism,” Feingold says. 

“The worst-case scenario,” he says, “is that institutions that are earnestly committed to reckoning with racism self-censor by avoiding practices that would be wholly consistent with this decision.” 

Justices Sonia Sotomayor and Clarence Thomas, both of whom have acknowledged affirmative action played a role in their admissions to college and law school, took the unusual step of reading a summary of their opinions aloud in the courtroom Thursday. 

In his concurring opinion, Thomas writes: “The solution to our nation’s racial problems thus cannot come from policies grounded in affirmative action or some other conception of equity. Racialism simply cannot be undone by different or more racialism. Instead, the solution announced in the second founding is incorporated in our Constitution: that we are all equal, and should be treated equally before the law without regard to our race.” 

A component of the Civil Rights Act of 1964, affirmative action was designed as a call to action for businesses and colleges. The act included a provision that institutions had an affirmative duty—that their leadership must make some effort—to rectify segregation within its ranks that was the result of earlier discriminatory practices. In practice, this affirmative action has taken the form of targeted outreach or recruitment to underrepresented minority groups, or eliminating exclusionary parts of the selection process. 

Opponents of these practices, including the plaintiffs in the Harvard and UNC cases, say that any consideration of race in college admissions is discriminatory. 

The cases, Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, share a common petitioner: Students for Fair Admissions (SFFA), a group whose members believe “that racial classifications and preferences in college admissions are unfair, unnecessary, and unconstitutional,” according to its website. The group was founded by Edward Blum, an activist who has made a name by orchestrating lawsuits that challenge affirmative-action practices and voting-rights laws across the country.

While similar, the two cases were slightly different. In the UNC case, SFFA argued that the university discriminated against white and Asian applicants by giving preference to Black, Latinx, and Native American applicants. In the Harvard case, the plaintiffs argued that the university effectively created a ceiling for Asian American applicants. 

The court ruled 6-3 in the UNC case, and 6-2 in the Harvard case. Justice Ketanji Brown Jackson recused herself from the Harvard case because she had been on the university’s Board of Overseers.

In her dissenting opinion, Sotomayor criticizes the decision as one that “rolls back decades of precedent and momentous progress.” 

“Although progress has been slow and imperfect, race-conscious college admissions policies have advanced the Constitution’s guarantee of equality and have promoted [Brown v. Board of Education’s] vision of a nation with more inclusive schools,” she writes, adding that with Thursday’s decision, “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.” Justices Elena Kagan and Jackson joined her dissent, though Jackson specified that she joined as it related to UNC.