High Court Stretched to End Affirmative Action. It Didn’t Have To

The US Supreme Court effectively ended the consideration of race in higher education admissions yesterday.

Technically, the court only decided that Harvard and University of North Carolina’s programs are impermissible as they currently operate. The court’s opinion could have been similarly narrow. Instead, the court made it almost impossible for any future affirmative action program to pass constitutional muster.

The six-member conservative wing of the court—led by Chief Justice John Roberts—opted to make sweeping proclamations of the illegitimacy of a practice that numerous members of the majority have long opposed.

The majority aligned itself with one of the most heroic moments of the Supreme Court’s history, comparing its decision here to Brown v. Board of Education. The majority equated prior court decisions that permitted affirmative action to Plessy v. Ferguson, the infamous case that gave constitutional legitimacy to the “separate but equal” doctrine.

A narrower path, based on the arguments raised by the Asian students who alleged discrimination in admissions, was available. The facts of the two cases, joined together in one opinion, were particularly suited to more narrowly rejecting the programs used by these two schools.

In the high court’s previous affirmative action cases, White applicants had complained when traditionally disadvantaged racial minority groups were given any preference.

Their argument was essentially that they may have been the lowest-ranked student who would have been accepted, but giving a spot to someone who had come from a disadvantaged background and faced racial discrimination may have put the White applicant on the rejection side of the line.

In these scenarios, the universities were arguably using racial discrimination as affirmative action programs intended—to provide a boost to underrepresented groups.

In contrast, the current case before the court was brought by a group of Asian students who made a pretty convincing case that Harvard and UNC were relying on racial stereotypes to reduce their numbers because Asian students are overrepresented on top university campuses.

As a group, Asian students were outperforming on objective measures such as SAT scores but underperforming on subjective scores such as interviewers’ impressions of their integrity, courage, and empathy.

As Justice Samuel Alito asked bluntly of advocate Seth Waxman, arguing on behalf of the universities, what accounts for why Asians rate lower on these subjective scores: Do they actually have less integrity, courage, and empathy, or is discrimination at play? A horrified Waxman repeatedly dodged the question, understandably.

But the Supreme Court didn’t rest the opinion on prohibiting this kind of discrimination. Instead, it wrote broadly to prohibit almost any consideration of race in the future, treating the two kinds of consideration of race as equivalent.

First, the court jettisoned its reasoning in Grutter v. Bollinger, where the court had recognized promoting diversity in schools as a compelling interest justifying affirmative action. Roberts, writing for the conservatives, conceded that interests such as training future leaders and acquiring new knowledge based on diverse outlooks “are commendable goals,” but they are not compelling, as they are too amorphous.

Second, the court had previously allowed considering race as a positive, but never as a negative. The court said that Harvard and UNC are using race as a negative but its primary evidence for this was that “College admissions are zerosum, and a benefit provided to some applicants but not to others necessarily advantages the former at the expense of the latter.”

In rejecting the idea that there is such a thing as considering race as a positive without considering it as a negative, the court was once again implicitly rejecting its own prior analysis.

Third, the court had written 20 years ago that it expected affirmative action would no longer be necessary in 25 years. Roberts turned this around to make it a requirement that the university considering race must show that its consideration is a mechanism of winding down the need for such consideration in the next five years—a seemingly impossible task.

So is there any role for diversity to be considered by universities? Ostensibly yes, but the route is extremely narrow. Roberts wrote that “nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university.”

That means students are permitted to bring up their experiences based on their race, but universities can only consider such information to the extent that it establishes a qualification—and diversity of experience is no longer considered a qualification.

In dissent, Justice Sonia Sotomayor dismissed the court’s “superficial rule of colorblindness” given that the US is “an endemically segregated society where race has always mattered and continues to matter.”

Justice Kentanji Brown Jackson similarly stressed that our “country has never been colorblind” and pointed to the “lengthy history of state-sponsored race-based preferences” that mean that failing to consider race is perpetuating racial difference, rather than correcting it.

These dissenting opinions are effectively passionately written obituaries for affirmative action in higher education.

The death of affirmative action may have seemed inevitable over the last few months, but the court could have singled out the faults of Harvard and UNC’s programs and allowed universities to continue experimenting with race-conscious admissions.

Instead, it chose to fundamentally change the constitutional landscape of the US, once again.

The cases are Students for Fair Admissions v. President and Fellows of Harvard College, 20-1199, and Students for Fair Admissions v. University of North Carolina, 21-707.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Tonja Jacobi is professor of law and Sam Nunn Chair in Ethics and Professionalism at Emory University School of Law, where she specializes in Supreme Court judicial behavior and public law.