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Supreme Court Rejects Affirmative Action

In earlier decisions, the court had endorsed taking account of race as one factor among many to promote educational diversity.

By Adam Liptak

Demonstrators in favor of affirmative action in Washington on Thursday.Credit...Kenny Holston/The New York Times

The Supreme Court on Thursday rejected affirmative action at colleges and universities around the nation, declaring that the race-conscious admissions programs at Harvard and the University of North Carolina were unlawful and sharply curtailing a policy that had long been a pillar of higher education.

The vote was 6 to 3, with the court’s liberal members in dissent.

“The Harvard and U.N.C. admissions programs cannot be reconciled with the guarantees of the equal protection clause,” Chief Justice John G. Roberts Jr. wrote for the majority. “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 end points.”

Justice Sonia Sotomayor summarized her dissent from the bench, a rare move that signals profound disagreement, and said that affirmative action was crucial to countering persistent and systematic racial discrimination.

“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 said in her written dissent.

The decision all but ensured that the student population at the campuses of elite institutions would become whiter and more Asian and less Black and Latino. It was also expected to set off a scramble as schools revisit their admissions practices, and it could complicate diversity efforts elsewhere, narrowing the pipeline of highly credentialed minority candidates and making it harder for employers to consider race in hiring.

The ruling demonstrated that the court’s conservative supermajority has been moving at a brisk pace to take on some of the thorniest and most divisive issues in American society including abortion, guns and now race — all in the span of a year. It also reflected President Donald J. Trump’s outsize imprint on the court after his appointment of three justices, renewing questions about whether the court’s approach, which on Thursday upended more than 40 years of precedent, threatens the stability of the law and the court’s legitimacy.

Public opinion polls offer a complicated picture of where people stand on affirmative action, and the numbers vary with how questions are phrased. But on balance, race-conscious admissions programs are unpopular, suggesting that Thursday’s ruling will not give rise to a backlash like the one that followed last year’s decision eliminating a constitutional right to an abortion.

Democrats, including President Biden, assailed the ruling as a step backward.

In a televised address hours after it was handed down, Mr. Biden urged the country to make sure the decision was not “the last word” on affirmative action.

“Discrimination still exists in America,” he said, repeating his words for emphasis. “Today’s decision does not change that.”

Mr. Biden paused as a reporter asked if the court was “rogue.” “This is not a normal court,” he responded.

Conservative leaders and advocacy groups celebrated the outcome, with some saying it would make the admissions process more fair.

Matt Schlapp, the chairman of the American Conservative Union, one of the nation’s largest conservative groups, said that the decision, paired with the court’s abortion ruling last year, “serve as a triumphant return to restoring our tattered Constitution.”

In dissent, Justice Sotomayor wrote that the majority had abandoned principled adjudication.

“At bottom,” she wrote, “the six unelected members of today’s majority upend the status quo based on their policy preferences about what race in America should be like, but is not, and their preferences for a veneer of colorblindness in a society where race has always mattered and continues to matter in fact and in law.”

The chief justice wrote that admissions officers could sometimes still take account of race, including in the college essay. “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,” he wrote.

The point, Chief Justice Roberts said, was that applicants must be assessed individually. “In other words,” he wrote, “the student must be treated based on his or her experiences as an individual — not on the basis of race.”

Justice Sotomayor said that was thin gruel.

“This supposed recognition that universities can, in some situations, consider race in application essays is nothing but an attempt to put lipstick on a pig,” she wrote.

But she acknowledged that the majority had left colleges and universities with some tools to admit students of different backgrounds, notably by focusing on socioeconomic factors.

The chief justice wrote that educational diversity, the idea that students of different backgrounds learn from one another, is a commendable goal. But he added that such a goal resists the demanding judicial scrutiny that is required when race is a factor because it cannot be measured.

In dissent, Justice Sotomayor wrote that the majority had effectively jettisoned the rationale that had justified affirmative action for decades.

“Without any new factual or legal justification,” she wrote, “the court overrides its longstanding holding that diversity in higher education is of compelling value. To avoid public accountability for its choice, the court seeks cover behind a unique measurability requirement of its own creation.”

Justices Clarence Thomas, Samuel A. Alito Jr, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett joined the chief justice’s majority opinion. Justices Elena Kagan and Ketanji Brown Jackson joined Justice Sotomayor’s dissent.

In all, six justices issued opinions, collectively spanning more than 200 pages notable for sometimes harsh language and starkly differing accounts of the nation’s history and the role race plays in contemporary society.

The two sides, for instance, offered competing understandings of the meaning of Brown v. Board of Education, the towering 1954 decision that barred racial segregation in public schools. The lesson of Brown, Chief Justice Roberts wrote, was that “the time for making distinctions based on race had passed.”

Justice Sotomayor said the decision stood for a different principle and accused the majority of engaging in revisionist history. “Brown was,” she wrote, “a race-conscious decision that emphasized the importance of education in our society.”

She added: “At the risk of stating the blindingly obvious, and as Brown recognized, the 14th Amendment was intended to undo the effects of a world where laws systematically subordinated Black people and created a racial caste system. Brown and its progeny recognized the need to take affirmative, race-conscious steps to eliminate that system.”

Justices Thomas and Jackson, the court’s Black members, traded particularly sharp barbs.

“As she sees things,” Justice Thomas wrote of Justice Jackson, “we are all inexorably trapped in a fundamentally racist society, with the original sin of slavery and the historical subjugation of Black Americans still determining our lives today.”

Justice Jackson responded that her colleague’s “prolonged attack responds to a dissent I did not write in order to assail an admissions program that is not the one U.N.C. has crafted,” adding that “Justice Thomas’s opinion also demonstrates an obsession with race consciousness that far outstrips my or U.N.C.’s holistic understanding that race can be a factor that affects applicants’ unique life experiences.”

She said she would not engage on every one of his points, as “Justice Thomas ignites too many more straw men to list, or fully extinguish, here.” (Justice Jackson recused herself from the Harvard case, having served on one of the university’s governing boards.)

Chief Justice Roberts, in a footnote, limited the sweep of the decision in one respect, saying that the court was not deciding whether military academies may take account of race in their admissions decisions as they have “potentially distinct interests.”

The sharp divisions were also evident in the courtroom, where three justices spoke from the bench. Between Chief Justice Roberts’s announcement of his majority opinion and Justice Sotomayor’s oral dissent, Justice Thomas summarized his concurring opinion in his booming baritone.

He said he was compelled to address “race-based discrimination against Asian American students,” adding that “such discrimination is plainly and boldly unconstitutional.”

Then Justice Sotomayor, seated directly to Justice Thomas’s right, offered her dissent, speaking for almost 20 minutes. “In a society where opportunity is dispensed along racial lines, equality cannot be attained through race blindness,” she said.

The two cases decided Thursday were not identical. As a public university, U.N.C. is bound by both the Constitution’s equal protection clause and Title VI of the Civil Rights Act of 1964, which bars race discrimination by institutions that receive federal money. Harvard, a private institution, is subject only to the statute.

In the North Carolina case, the plaintiffs said that the university discriminated against white and Asian applicants by giving preference to Black, Hispanic and Native American ones. The university responded that its admissions policies fostered educational diversity and were lawful under longstanding Supreme Court precedents.

The case against Harvard has an additional element, accusing the university of discriminating against Asian American students by using a subjective standard to gauge traits like likability, courage and kindness, and by effectively creating a ceiling for them in admissions.

Lawyers for Harvard said the challengers had relied on a flawed statistical analysis and denied that the university discriminated against Asian American applicants. More generally, they said race-conscious admissions policies were lawful.

Both cases — Students for Fair Admissions v. Harvard, No. 20-1199, and Students for Fair Admissions v. University of North Carolina, No. 21-707 — were brought by Students for Fair Admissions, a group founded by Edward Blum, a legal activist who has organized many lawsuits challenging race-conscious admissions policies and voting rights laws, several of which have reached the Supreme Court.

The universities both won in federal trial courts, and the decision in Harvard’s favor was affirmed by a federal appeals court.

The key precedent was Grutter v. Bollinger, a 2003 decision in which the Supreme Court endorsed holistic admissions programs, saying it was permissible to consider race to achieve educational diversity. Writing for the majority in that case, Justice Sandra Day O’Connor said she expected that “25 years from now,” or in 2028, the “use of racial preferences will no longer be necessary.”

Chief Justice Roberts wrote on Thursday that “there is no reason to believe that respondents will — even acting in good faith — comply with the equal protection clause any time soon.”

In his concurring opinion, Justice Thomas wrote that the majority opinion “rightly makes clear that Grutter is, for all intents and purposes, overruled.”

For her part, Justice Sotomayor struck a defiant note.

“The pursuit of racial diversity will go on,” she wrote. “Although the court has stripped out almost all uses of race in college admissions, universities can and should continue to use all available tools to meet society’s needs for diversity in education. Despite the court’s unjustified exercise of power, the opinion today will serve only to highlight the court’s own impotence in the face of an America whose cries for equality resound.”

© 2023 The New York Times Company


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