AP Photo/Gerry Broome

In a 6-3 decision, the Supreme Court ruled against race-conscious admissions programs. In both cases — Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina — college admissions programs considered race as one of many factors in determining an application’s value. The Court ruled that this violated the 14th amendment’s Equal Protection Clause. It also ruled that U.N.C., a public university, violated Title VI of the Civil Rights Act of 1964. Title VI bans federally-funded institutions from race discrimination.

The Justices who held the majority opinion argued that the universities’ admissions policies are unconstitutional because they:

  • Aim toward goals that are hard to measure. Because this case centered on race discrimination, it was held to a strict scrutiny standard. To meet this standard, a law must be narrowly tailored and to serve a compelling government interest. The majority wrote that the impact of student diversity is not easily measured and therefore fails the strict scrutiny test. 
  • Use categories that are imprecise. The majority argued race and ethnicity categories are not comprehensive. Some are overbroad (“Asian”), arbitrary or undefined (“Hispanic”), or underinclusive (the lack of a category for Middle Eastern applicants). 
  • Rely on racial stereotypes. The majority said that the admissions process is a zero-sum game. If Black and Hispanic students receive preference for their race, the majority wrote, white and Asian students are by default at a disadvantage.  
  • Do not have an end point. In Grutter v. Bollinger, the Court wrote: “We expect that 25 years from now, the use of racial preferences will no longer be necessary.” Today’s majority argued that Grutter, decided 20 years ago, set a deadline on race-conscious admissions policies that Harvard and U.N.C. failed to demonstrate a tangible deadline for theirs. 

In her dissent, Justice Ketanji Brown Jcakson argued that the decision ignores the fact that the U.S. is not a colorblind country. Joined by Justices Sonia Sotomayor and Elena Kagan, she wrote, “Deeming race irrelevant in law does not make it so in life.”

Justice Sotomayor pointed to consistent precedent for affirmative action and wrote that there is “no basis for overruling” these cases: 

CaseYear and VoteDecision
Regents of the University of California v. Bakke1978,
Racial quota systems violate the Civil Rights Act of 1964 and institutions of higher education can consider race in their admissions decisions.
Grutter v. Bollinger2003,
Because race is one of many factors used to evaluate an applicant, the Equal Protection Clause does not require law schools to provide a narrowly tailored government interest for race-conscious admissions programs.
Fisher v. University of Texas2012,
The Equal Protection Clause allows undergraduate admissions policies to consider race when they meet strict scrutiny. 
Fisher v. University of Texas2016,
Affirmed the first Fisher decision.

Students for Fair Admissions proposed a new model for admissions, which is expected to decrease Harvard’s Black representation by one third. The Court’s 3-Justice liberal bloc argued that this would undermine efforts to address gaps in learning, a key to equity.

Students from underrepresented, marginalized identities are more likely to attend schools with less qualified teachers, challenging curricula, and extracurricular activities. “Unsurprising that there are achievement gaps along racial lines, even after controlling for income differences,” Justice Sotomayor wrote, underscoring why it is important for admissions policies to consider race.

As Harvard Student and Alumni Organizations explained in their brief: “Talent lives everywhere, but opportunity does not.”

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