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

A view of the U.S. Supreme Court in Washington, D.C., on June 5. Alex Wong/Getty Images hide caption

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A view of the U.S. Supreme Court in Washington, D.C., on June 5.

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Supreme Court guts affirmative action, effectively ending race-conscious admissions

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In a historic decision, the U.S. Supreme Court on Thursday effectively ended race-conscious admission programs at colleges and universities across the country. In a decision divided along ideological lines, the six-justice conservative supermajority invalidated admissions programs at Harvard and the University of North Carolina.

The decision reverses decades of precedent upheld over the years by narrow Supreme Court majorities that included Republican-appointed justices. It ends the ability of colleges and universities — public and private — to do what most say they still need to do: consider race as one of many factors in deciding which of the qualified applicants is to be admitted.

Chief Justice John Roberts, a longtime critic of affirmative action programs, wrote the decision for the court majority, saying that the nation's colleges and universities must use colorblind criteria in admissions.

Majority opinion

"Many universities have for too long...concluded, wrongly, that the touchstone of an individual's identity is not challenges bested, skills built, or lessons learned but the color of their skin," he wrote. "Our constitutional history does not tolerate that choice."

Justice Clarence Thomas took the unusual step of reading from the bench parts of his lengthy concurring opinion.


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Thursday's decision, he wrote, "sees the universities' admissions policies for what they are: rudderless, race-based preferences. ... Those policies fly in the face of our colorblind Constitution."

As he has done before, Thomas, the second black justice appointed to the court, reiterated his long-held view that affirmative action imposes a stigma on minorities. "While I am painfully aware of the social and economic ravages which have befallen my race and all who suffer discrimination, I hold our enduring hope that this country will live up to its principles that ... all men are created equal, are equal citizens, and must be treated equally before the law."

Roberts, for his part, pointed to the court's 2003 decision reaffirming the constitutionality of affirmative action programs, noting that Justice Sandra Day O'Connor, writing for the court at the time, had suggested that there would have to be an end at some future point. That time has now come, Roberts said.

Opposing view

"It feels tragic," said Columbia University President Bollinger, who has for 30 years been a leading proponent of affirmative action programs.


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"It feels like the country has been on a course of choosing between a continuation of the great era of civil rights, and another view of 'We've done this long enough, and we need a whole new approach.' It's now the second choice."

That sentiment echoed Justice Sonia Sotomayor's dissent.

"The Court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society," she wrote.

Justice Ketanji Brown Jackson, the court's first Black female justice, also chimed in, saying: "With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces 'colorblindness for all' by legal fiat. But deeming race irrelevant in law does not make it so in life."

Indeed, the reality is that in those places where affirmative action has been eliminated, there has been a severe drop in minority, and particularly, African American, admissions. NYU law professor Melissa Murray was the acting dean at the University of California Berkeley in 2016 and 2017 when a state referendum barred the use of race in college admission decisions.

"There was an immediate drop off in the number of African American students that was both a confluence of the change in the admissions policy, but also African American students not wanting to go [to Berkeley] under those conditions," she said. "People don't want to be spotlighted. There is a kind of comfort in numbers, and it was very difficult for a very long time to recruit under those conditions."

Indeed, the situation got so bad, she says, that she had to go to the president of the state university system to get permission to place clusters of African American students in classes, instead of "sprinkling them around," leaving minority students alone to speak their mind when subjects of race were discussed.

Door is left slightly open

Now every school will be in that situation, or so it may seem.
The court did not entirely close the door to racial considerations in college admissions. As Roberts put it, "Nothing in this opinion should be construed as prohibiting universities from considering an applicants discussion of how race affected his or her life." Nor did the court address the tactic of clustering minority students in classes.


How the Supreme Court has ruled in the past about affirmative action

What's more, the court specifically left open the possibility that the nation's military academies, because of their "distinct interests," may be able to continue with their successful affirmative action programs, which have resulted in a very diverse officer corps.

"That issue is so sensitive because it raises the question of national security that the court has backed away from following its own logic," said University of California Berkeley professor Jerome Karabel.

He notes that a similar logic might apply to police forces seeking to recruit minorities so as to ensure that a virtually all white force would not be policing a majority Black town.

For the nation's colleges and universities, however, diversity will no longer be an acceptable rationale for taking race into account.

Broader impact

Thursday's decisions are likely to cause ripples throughout the country, and not just in higher education, but in selective primary and secondary schools like Boston Latin in Massachusetts, Thomas Jefferson high school in Virginia, and Bronx High School of Science in New York.


Read the Supreme Court decision reversing decades of precedent on affirmative action

Ultimately, effects will be felt in every aspect of the nation's economic, educational, and social life--from the Rooney rule that requires a minority applicant be considered in all NFL coach hiring decisions to employment and promotion decisions, DEI programs in schools and workplaces, and much more.

"We're going to be fighting about this for the next 30 years," said Harvard law professor Randall Kennedy.

Edward Blum, who for decades has been a one-man crusader against everything from the landmark 1965 Voting Rights Act to affirmative action in higher education, plans to challenge some corporate boards on racial preference grounds, and he says he knows of other plans to challenge minority scholarship and fellowship programs.

UC's Karabel notes that there are already employment lawsuits pending, and "by the logic of this decision, I would think that racial discrimination, as defined by the court, would be banned in employment as well."

"It's going to open a Pandora's box across the country and across institutions and industries," said Harvard co-counsel Bill Lee in an NPR interview last fall.

How the case came to be

The court's decisions came in cases involving two elite institutions, one the oldest public university — the University of North Carolina — and the other, the oldest private university, Harvard. Blum, the anti-affirmative activist, likely chose these highly visible schools as his legal targets precisely because of their elite status.

UNC did not admit Black undergraduates until 1955, and then only after it was ordered to by the federal courts. Harvard, by contrast, became the model for affirmative action programs in 1978 when the Supreme Court cited the school's consideration of race as similar to other traits the school relied on to ensure a diverse student body. Thus, the court said back then that race could be one of many factors that the school considered, just as other characteristics were considered — geography, or being raised on a farm, or special achievements in everything from science to athletics, or being a so-called legacy student, the son or daughter of someone who attended Harvard.

That system, reaffirmed twice by the Supreme Court, has remained in place not just at Harvard, but at most of the institutions of higher learning across the United States. Until Thursday, when the court — as it did last year in the abortion case — upended decades of its own precedents.

The court majority made clear that it agreed with Students For Fair Admissions, which sued Harvard and UNC, claiming, among other things, that the schools discriminated against Asian American students who had SAT and grade scores higher than any other racial group, including whites, and who made up, at Harvard, for instance, 29% of the entering class last year. SFFA asserted that the number should have been higher than that, though Asians are just 7.2% of the U.S. population.

Harvard, in defending its current iteration of affirmative action, noted that each class has only 1,600 slots, but, by the numbers, it has thousands of equally qualified applicants. In the class of 2019, for instance, it had 35,000 applicants, 3,700 of them with perfect math SAT scores; 2,700 with perfect verbal SAT scores, and more than 8,000 with perfect grade point averages. There are no similar figures for the most recent incoming class at Harvard, but the number of applicants in 2023 has nearly doubled in the last four years.

What the public thinks

The reaction to Thursday's decision may be consternation in some quarters, but public opinion on affirmative action is not like abortion, a subject on which virtually every poll shows the public completely at odds with the court. Public opinion on affirmative actions is more nuanced and more mixed. Polls on the subject conflict: some show upwards of 60% approval for affirmative action programs, and others show less than 50% support.

Indeed, in liberal California, for instance, 57% of voters in 2020 cast their ballots against reinstating affirmative action in the state's public colleges and universities.

Generally, polls show that public support for affirmative action has grown in recent years, but voters are conflicted on the subject, with the outcome depending on how the question is asked. A recent Washington Post-Schar School Poll found that 6 in 10 Americans say race should not be considered in college admissions. But when the question was asked a slightly different way, the numbers showed big majorities endorsing programs to boost racial diversity on campuses.

And yet no alternative to affirmative action has worked as well as some consideration of race.

College admission administrators say schools that have tried to raise the numbers of Black and Latin0 students without any consideration of race have found that no other criterion — class, or economic status, or programs like a guarantee of admission for students in the top 5% or 10% of their high school class — works as well.

"The research is exceptionally clear," University of Texas professor Stella Flores, whose specialty is higher education and public policy, told NPR in an interview last fall. "There's no other alternative method that will racially diversify a student body, other than the use of race as one factor of consideration."

Court's 'double tak'

Harvard's Professor Kennedy points to what he calls "double talk: in the Supreme Court's Thursday opinion. Take two signs, he says: a sign that says "Black people stay out," and contrast it with a sign that says "Black people welcome."

"Both have race in them. Are they truly both racially discriminatory? The Supreme Court, at least on one side of its mouth, seems to say yes, they're both racially discriminatory. But at the end of the Supreme Court's opinion, it says, well of course one can look favorably on someone who's overcome racial impediments."

"I think we are at a very critical point," said Columbia President Bollinger, who, earlier in his career, shaped the affirmative action program at the University of Michigan, a program that was upheld in 2003. He sees the landscape of admissions systems now shifting markedly, with "the demise" of school rankings, and less emphasis on standardized test scores. Columbia, he notes, has more veterans than any other Ivy League college. "I think there will be a lot of experimentation in admissions, as there should be over the next decade."

The magnitude of Thursday's decision was emphasized by the fact that, in all, six justices wrote separately. And three justices spoke for more than 40 minutes from the bench--the chief justice in the majority, Thomas concurring, and Sotomayor in dissent. Indeed, in print, the Supreme Court's decisions, plus dissents and concurrences, reached a book-sized 237 pages.

Race has never been any easy subject for Americans to deal with, and it's about to get a lot harder.

Meghanlata Gupta contributed to this story.


Supreme Court guts affirmative action, effectively ending race-conscious admissions? ›

In a historic decision, the U.S. Supreme Court on Thursday effectively ended race-conscious admission programs at colleges and universities across the country.

What is the affirmative action in college admissions? ›

WHAT IS AFFIRMATIVE ACTION? In the context of higher education, affirmative action typically refers to admissions policies aimed at increasing the number of Black, Hispanic and other minority students on campus.

Will the Supreme Court strike down affirmative action? ›

The Supreme Court on Thursday struck down affirmative action in college admissions, declaring race cannot be a factor and forcing institutions of higher education to look for new ways to achieve diverse student bodies.

When did affirmative action start in college admissions? ›

But it was a 2003 decision by the Supreme Court, known as Grutter v. Bollinger, that established a national precedent allowing schools to consider race when making admissions decisions.

What does the Supreme Court ruling on affirmative action mean? ›

The Supreme Court's landmark decision on Thursday to gut affirmative action has made it unlawful for colleges to take race into consideration as a specific factor in admissions.

What are 3 examples of affirmative action? ›

Outreach campaigns, targeted recruitment, employee and management development, and employee support programs are examples of affirmative action in employment.

What is the main purpose of affirmative action? ›

The purpose of affirmative action is to ensure equal employment opportunities for applicants and employees. It is based on the premise that, absent discrimination, over time a contractor's workforce generally will reflect the demographics of the qualified available workforce in the relevant job market.

What has caused the Supreme Court to weaken affirmative action laws? ›

What has caused the Supreme Court to weaken affirmative action laws? The Court decided that affirmative action policies must survive strict scrutiny. Some affirmative action policies violated the Fourteenth Amendment.

Why did Supreme Court rule against affirmative action? ›

“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 endpoints.

Can states go against Supreme Court decisions? ›

A decision of the U.S. Supreme Court, a federal court, is binding on state courts when it decides an issue of federal law, such as Constitutional interpretation. The Constitutional issues are federal. The state trial court is thus bound by the U.S. Supreme Court's decisions about the Constitutional issues in your case.

How will Supreme Court decision affect college admissions? ›

Supreme Court ends race-conscious college admissions. How will it change California education? The Supreme Court on Thursday said universities and colleges could no longer use a form of race-conscious admissions, rejecting a decades-old precedent in affirmative action policy.

Does Harvard have affirmative action? ›

The Supreme Court ruled Thursday that affirmative action policies at Harvard and the University of North Carolina that consider a student's race for college admissions are unconstitutional.

Can colleges use race based admissions? ›

The US Supreme Court has struck down colleges' and universities' right to use race as a factor in deciding which students they admit.

How has the Supreme Court ruled on affirmative action in University admissions? ›

Supreme Court rejects affirmative action in college admissions. WASHINGTON — The Supreme Court on Thursday struck down affirmative action programs at the University of North Carolina and Harvard in a major victory for conservative activists, ending the systematic consideration of race in the admissions process.

Why did the Supreme Court allow the use of affirmative action programs quizlet? ›

Why did the Supreme Court allow the use of affirmative-action programs? Affirmative action is a policy or action that favored those who suffer from discrimination, especially with education or employment. The Supreme Court allowed the programs because it was difficult to enforce anti-discrimination laws.

Does affirmative action affect private universities? ›

The Supreme Court's ruling on affirmative action won't affect public colleges and universities in California, but it will affect private universities.This is because of Proposition 209 which passed in 1996 and went into effect in 1998.

What are the disadvantages of affirmative action? ›

Perhaps the most tragic side effect of affirmative action is that very significant achievements of minority students can become compromised. It is often not possible to tell whether a given student genuinely deserved admission to Stanford, or whether he is there by virtue of fitting into some sort of diversity matrix.

What is affirmative action in simple terms? ›

Affirmative Action is a program of positive action, undertaken with conviction and effort to overcome the present effects of past practices, policies, or barriers to equal employment opportunity and to achieve the full and fair participation of women, minorities and individuals with disabilities found to be ...

What are 10 examples of affirmative? ›

Examples of Affirmative Sentences
  • I have a puppy.
  • My brother bought fifty varieties of fighter fish.
  • There is a three-storeyed house in the corner of the street.
  • Manu is the new manager.
  • Tokyo is the capital of Japan.
  • My phone has two displays.
  • The teacher gave us our marksheets.

What is the difference between diversity and affirmative action? ›

Affirmative action is numbers oriented, aimed at changing the demographics within the organization. Managing diversity is behavioral, aimed at changing the organizational culture, and developing skills and policies that get the best from everyone.

What are the requirements for affirmative action? ›

You must develop an affirmative action program (AAP) if you have 50 or more employees and at least one contract of $50,000 or more, under Executive Order 11246 and Section 503 of the Rehabilitation Act of 1973.

Is affirmative action a law or policy? ›

Employers who contract with the government or who otherwise receive federal funds are required to document their affirmative action practices and metrics. Affirmative action is also a remedy, under the Civil Rights Act of 1964, where a court finds that an employer has intentionally engaged in discriminatory practices.

What does the 14th Amendment say about race? ›

[The Fourteenth Amendment] was designed to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons, and to give to that race the protection of the general government in that enjoyment, whenever it should be denied by the States.

Why is the 14th Amendment controversial today? ›

This is because, for the first time, the proposed Amendment added the word "male" into the US Constitution. Section 2, which dealt explicitly with voting rights, used the term "male." And women's rights advocates, especially those who were promoting woman suffrage or the granting of the vote to women, were outraged.

What does the Constitution say about African Americans? ›

The 14th Amendment to the Constitution is one of the nation's most important laws relating to citizenship and civil rights. Ratified in 1868, three years after the abolishment of slavery, the 14th Amendment served a revolutionary purpose — to define African Americans as equal citizens under the law.

Which Supreme Court justices ruled against affirmative action? ›

Supreme Court justices who voted against affirmative action

Roberts' opinion was joined by Thomas, Samuel Alito, Gorsuch, Kavanaugh and Amy Coney Barrett. The chief justice wrote that Harvard and UNC's race-based admission guidelines "cannot be reconciled with the guarantees of the Equal Protection Clause."

Why did the Supreme Court ruled that separate but equal was unconstitutional? ›

Although he raised a variety of legal issues on appeal, the most common one was that separate school systems for blacks and whites were inherently unequal, and thus violate the "equal protection clause" of the Fourteenth Amendment to the U.S. Constitution.

Why did the Supreme Court overturn separate but equal? ›

Because new research showed that segregating students by "race" was harmful to them, even if facilities were equal, "separate but equal" facilities were found to be unconstitutional in a series of Supreme Court decisions under Chief Justice Earl Warren, starting with Brown v. Board of Education of 1954.

Who can overrule a Supreme Court decision? ›

When the Supreme Court rules on a constitutional issue, that judgment is virtually final; its decisions can be altered only by the rarely used procedure of constitutional amendment or by a new ruling of the Court. However, when the Court interprets a statute, new legislative action can be taken.

Who can overrule the Supreme Court in America? ›

Court can declare a law unconstitutional; allowing Congress to override Supreme Court decisions; imposing new judicial ethics rules for Justices; and expanding transparency through means such as allowing video recordings of Supreme Court proceedings.

Can a federal judge overrule the Supreme Court? ›

Federal courts may overrule a state supreme court decision only when there is a federal question which springs up a federal jurisdiction.

What are three factors that can influence Supreme Court decisions? ›

But additional legal, personal, ideological, and political influences weigh on the Supreme Court and its decision-making process. On the legal side, courts, including the Supreme Court, cannot make a ruling unless they have a case before them, and even with a case, courts must rule on its facts.

What ruling did the Supreme Court make about the use of affirmative action in University admissions in Grutter v Bollinger? ›

Bollinger, a case decided by the United States Supreme Court on June 23, 2003, upheld the affirmative action admissions policy of the University of Michigan Law School. The decision permitted the use of racial preference in student admissions to promote student diversity.

Has affirmative action changed in college admissions in response to statewide bans and judicial rulings? ›

We find substantial declines in levels of affirmative action practiced by highly selective colleges in the states affected by bans and the Hopwood and Johnson rulings, and no evidence of declines outside these states (and thus modest and generally insignificant declines nationwide).

What two top universities banned affirmative action? ›

Enrollment at the University of Michigan Law School and the University of California, Berkeley School of Law among Black, Hispanic and Native American first-year students plummeted after both states banned affirmative action in public university admissions.

What are the 3 lies of Harvard? ›

If you visit Harvard, you just have to see the statue of John Harvard outside University Hall, even though it has three inaccuracies: (1) there was no known likeness of John Harvard so a student sat for the pose, (2) John Harvard was not the founder of the College, just the donor of his library, and (3) the College was ...

Is it harder for Asians to get into college? ›

According to research from Princeton University, students who identify as Asian must score 140 points higher on the SAT than whites and 450 points higher than Blacks to have the same chance of admission to private colleges.

What does Supreme Court ruling mean for college admissions? ›

The Supreme Court's landmark decision on Thursday to gut affirmative action has made it unlawful for colleges to take race into consideration as a specific factor in admissions.

Does Duke consider race in admissions? ›

Dean of Undergraduate Admissions Christoph Guttentag wrote that the Office of Undergraduate Admissions currently considers race as “one of many meaningful elements in the diversity of a student body.”

What did the Supreme Court say about affirmative action in the Bakke decision? ›

It upheld affirmative action, allowing race to be one of several factors in college admission policy. However, the court ruled that specific racial quotas, such as the 16 out of 100 seats set aside for minority students by the University of California, Davis, School of Medicine were impermissible.

What did the Supreme Court hold about an admissions programs in the case of the University of California Board of Regents v Bakke? ›

Regents of University of California v.

Bakke (1978), the Supreme Court ruled that a university's use of racial "quotas" in its admissions process was unconstitutional, but a school's use of "affirmative action" to accept more minority applicants was constitutional in some circumstances.

What factors led the Supreme Court to weaken affirmative action laws? ›

What factors led the Supreme Court to weaken affirmative action laws? -The Court ruled that particular affirmative action policies violate the Fourteenth Amendment. -The Court decided that affirmative action policies must survive strict scrutiny.

What component of affirmative action did the Supreme Court rule unconstitutional? ›

In a 6-3 decision along ideological lines, the justices ruled that the admissions policies that include race as a factor violate the Equal Protection Clause.

What was the landmark decision by the Supreme Court regarding affirmative action? ›

v. Pena, 513 U.S. 1012 (1994) the Supreme Court held that a federal affirmative action program remains constitutional when narrowly tailored to accomplish a compelling government interest such as remedying discrimination.

Do private schools have an advantage in college admissions? ›

Lower-ranking and achieving private schools are far less selective, though still are more selective than public schools, which take every student. The top private schools provide a major boost to college admissions chances, while those in the middle of the pack and below don't perform any better than public schools.

What are the negative effects of affirmative action in higher education? ›

Affirmative action also implies inferiority, sending a message that minority students are not expected to do as well as white students. Both of these lead to a “debilitating doubt,” where many classmates and future employers view minority students or graduates as products of a policy and not of merit.

What is affirmative action at Harvard? ›

Harvard University selects and promotes staff and faculty without discrimination on the basis of race, color, sex, sexual orientation, pregnancy and pregnancy-related conditions, gender identity, religion, creed, national origin, age, disability, veteran status, military service, genetic information, or other protected ...

What is affirmative action in college facts? ›

As of 2022, nine states have banned affirmative action, with other states reversing (Texas) or failing to pass (Colorado) the measures. In 2022, nearly 3 in 4 (74%) people in the U.S. said that race or ethnicity should not be considered in college admissions.

What is the Harvard affirmative action case? ›

Students for Fair Admissions v. Harvard, 600 U.S. ___ (2023), is a landmark decision of the U.S. Supreme Court in which the court held that race-based affirmative action programs in college admissions processes violate the Equal Protection Clause of the Fourteenth Amendment.

What are the race categories for affirmative action? ›

White (not Hispanic or Latino) Black or African American (not Hispanic or Latino) Native Hawaiian or Pacific Islander (not Hispanic or Latino) Asian (not Hispanic or Latino)

Why did the Supreme Court rule against affirmative action? ›

“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 endpoints.

Why is students for fair admissions suing Harvard? ›

A politically motivated lawsuit brought by Edward Blum and the organization he created, Students for Fair Admissions (SFFA), wants to remove the consideration of race in college and university admissions.

What is the Supreme Court case for students for fair admissions Harvard? ›

Facts of the case

Petitioner Students for Fair Admissions (SFFA) sued Harvard College over its admissions process, alleging that the process violates Title VI of the Civil Rights Act of 1964 by discriminating against Asian American applicants in favor of white applicants.

What is the Executive Order 10925? ›

Executive Order 10925 gave federal contracting agencies authority to institute procedures against federal contractors who violated their EEO obligations—including contract cancellation, debarment from future contracts and other sanctions.

Do college students support affirmative action? ›

Almost half of students (45%) agree that banning the use of race/ethnicity in college admissions is most fair. Only 24% disagree. A nearly equal number of white respondents are for (37%) or against (36%) affirmative action. College men (40%) are more likely than college women (35%) to support affirmative action.

What are the key facts about affirmative action? ›

Affirmative action is defined as a set of procedures designed to; eliminate unlawful discrimination among applicants, remedy the results of such prior discrimination, and prevent such discrimination in the future. Applicants may be seeking admission to an educational program or looking for professional employment.

Who started the affirmative action lawsuit? ›

The affirmative action cases were brought by conservative activist Edward Blum, who also was behind an earlier challenge against the University of Texas as well as the case that led the court in 2013 to end use of a key provision of the landmark Voting Rights Act.

What was the outcome of the Students for Fair Admissions v Harvard? ›

Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll. The First Circuit affirmed that Harvard does not intentionally discriminate against Asian Americans and thus does not violate Title VI.

What is Title VI for students for fair admissions? ›

The language of Title VI makes no allowance for racial considerations in university admissions. It prohibits all forms of racial discrimination at universities that accept federal funds, with no exceptions for “compelling interests,” “diversity,” or “strict scrutiny.”


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