Supreme Court Rules Against Affirmative Action

The Supreme Court on Thursday ruled against affirmative action programs at Harvard and the University of North Carolina in a 6-3 decision (6-2 in the Harvard case, where Justice Ketanji Brown Jackson recused).

Specifically, the Supreme Court held that Harvard and UNC’s admissions programs violate the Equal Protection Clause of the Fourteenth Amendment. A challenge to the constitutionality of suspect classifications, such as classifications based on race, can be defeated only if the practice passes the strict scrutiny test. The strict scrutiny test is a two-part test: 1. The practice must be in place to further a compelling governmental interest; and 2. It must be narrowly tailored to achieve that interest.

Twenty years ago, the Court justified the use of race in admissions decisions to advance a compelling state interest in student body diversity in the case of Grutter v. Bollinger. Notably in Grutter, the majority opinion considered that the use of race in admissions decisions would not be necessary in 2028. The last time the Court ruled in favor of an affirmative action university admissions program was in the 2016 case of Fisher v. University of Texas at Austin (“Fisher II”).

The majority in Thursday’s opinion took issue with the interests the universities identified as fulfilling the compelling interest prong of the strict scrutiny test. The opinion states that interests such as “training future leaders,” “better educating its students through diversity,” “promoting the robust exchange of ideas,” and “enhancing appreciation, respect, and empathy, cross-racial understanding, and breaking down stereotypes” are not “sufficiently coherent” to pass the strict scrutiny test because they are not measurable and there is no clear point where any one of those goals would be reached. It also questions whether assigning students such broad categories as “Asian” and “Hispanic” is a meaningful way to achieve the universities’ goals.

The opinion, written by Chief Justice John Roberts, mentions a time limit for considerations of race in university admissions: “University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and—at some point—they must end.”

The Court points out that both Harvard and UNC admitted that their use of race in their admissions programs has no expected end date. The opinion further quotes Harvard as saying that “the way it thinks about the use of race in its admissions process ‘is the same now as it was’ nearly 50 years ago.”

Finally, the Court 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.”

Highly-selective colleges will likely be most affected by the Court’s decision and may strive to curb any loss of diversity with race-neutral admissions practices. Colleges that admit a larger percentage of applicants will likely be less affected.

Consideration of race in military academy admissions was not addressed in the opinion “in light of the potentially distinct interests that military academies may present.”

Additional Reading

Supreme Court guts affirmative action, effectively ending race-conscious admissions, NPR (June 29, 2023)

Supreme Court strikes down affirmative action programs at Harvard and UNC, NBC News (June 29, 2023)

Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. ___ (2023)

Equal Protection Supreme Court Cases, Justia

Image Credit: Marcio Jose Bastos Silva /