Supreme Court 2023 Rulings on Affirmative Action Explained

In a decision issued issued June 29, 2023, ruling on two cases, one involving Harvard College, and the second, the University of North Carolina, the Supreme Court held that college admission policies that ncluded race as a factor were unconstitutional and, therefore, not lawful under the Equal Protection Clause of the Fourteenth Amendment.

The rulings, one by a vote of 6-2 in the case of Students for Fair Admissions v. Harvard College and another framed by a 6-3 vote in the case of Students for Fair Admissions v. the University of North Carolina (UNC), effectively ended the practice of affirmative action.

The rulings reversed the inclusion of race in college admission policies based on the SCOTUS decision in Regents of the University of California v. Bakke in 1978, in which the court concluded that while race-based quotas in college admission policies were unconstitutional, using race as one of several determining factors was not.

In the June 29 rulings, Chief Justice John Roberts delivered the opinion of the Court, joined by Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. Justices Thomas, Gorsuch, and Kavanaugh filed concurring opinions.

In the majority opinion, Justice Roberts wrote: "Because Harvard's and UNC's admissions 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, those admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause."

Justices Sotomayor, Kagan, and Jackson filed dissenting opinions. Justice Jackson did not participate in the Harvard decision due to her previous involvement on the university's Board of Overseers. In her separate, dissenting opinion, Justice Jackson contended that the majority decision conflicts with the Equal Protection Clause of the 14th Amendment, and constitutes "a perverse, ahistorical, and counterproductive outcome. For the minority, Justice Kagan wrote: “Today, this Court stands in the way and rolls back decades of precedent and momentous progress.

History of Students for Fair Admissions v. Harvard and UNC

The Supreme Court cases at the heart of this decision combined two petitions, 20-1199 Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and 21-707 Students for Fair Admissions, Inc. v. University of North Carolina, et al.

Students for Fair Admissions

Students for Fair Admissions (SFFA), is a nonprofit organization whose stated purpose is “to support and participate in litigation that will restore the original principles of our nation’s civil rights movement: A student’s race and ethnicity should not be factors that either harm or help that student to gain admission to a competitive university." The group was founded in 2014 by Edward Blum, a conservative activist who has fought affirmative action policies and filed cases on behalf of college applicants who believe they were victims of reverse discrimination on the basis of their race.

Harvard University

Harvard University is the oldest university in the United States and a prestigious private Ivy League school. SFFA sued Harvard in 2014 for unlawful discrimination against Asian American applicants in its admissions practices. Harvard, which has long considered race for admission, called the lawsuit politically motivated. The 2014 lawsuit accused Harvard of violating Title VI of the Civil Rights Act of 1964, which bars discrimination based on race, color, or national origin.

Since 2014, two federal courts have ruled in Harvard's favor. On October 1, 2019, U.S. District Judge Allison D. Burroughs affirmed Harvard's policies as central to diversity and inclusion principles. Then on November 12, 2020, the First Circuit upheld the District Court's ruling in Harvard's favor.

University of North Carolina

The University of North Carolina at Chapel Hill, the oldest U.S. public university, was also sued by SFFA in 2014 for unlawfully discriminating against white and Asian American applicants. Like Harvard, UNC denied the allegations and defended its admissions policies. Specifically, the SFFA lawsuit accused the university of violating the U.S. Constitution's 14th Amendment promise of equal protection under the law.

The SFFA lawsuit against UNC followed a similar trajectory to the one against Harvard. Two years after the filing, the U.S. Supreme Court ruled that UT-Austin admissions practices, which also consider race as an admissions factor were constitutional. On October 18, 2021, the trial court ruled in UNC's favor in the SFFA lawsuit.

President Biden's Reaction to the June 29 Rulings

In remarks made after the rulings on June 29, President Biden said, "The Court has effectively ended affirmative action in college admissions. And I strongly—strongly disagree with the Court’s decision."

The President proposed "a new standard, where colleges take into account the adversity a student has overcome when selecting among qualified applicants." He then noted that he had directed the Department of Education to analyze practices that help build more inclusive and diverse student bodies and practices that do not.

Lessons from California About Diversity Lost

Twenty-five years after California banned race-based admission policies at public universities, schools reported that their attempts to meet diversity and equity goals had fallen short. Proposition 209, a ban on affirmative action in colleges and universities, was approved by California voters in 1996. In 1998, when the ban first took effect, enrollment among Black and Latino students at UCLA and UC Berkeley fell by 40%, according to a study by Zachery Bleemer, an economist at Princeton.

A variety of tactics, including eliminating standardized tests as a criterion for admission, have been tried with modest success. Schools have reported that 25 years later, they still have been unable to meet their diversity goals.

The Bottom Line

The decision by the Supreme Court to overturn lower court rulings and effectively declare that race can not be a consideration in admission policies was tempered somewhat by a comment from Chief Justice Roberts that admissions officers could consider “an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”

Some experts, however, felt the decision would result in a more (not less) opaque admissions process as colleges began to rely on essays and their interpretation of the impact of race on the applicant's life to select candidates for admission. Some suggested this would result in numerous lawsuits by conservative groups that promised to monitor universities and their selection processes.