BREAKING

Supreme Court Rules Against Affirmative

Action
The court found it unconstitutional to consider race in university admissions,
eliminating the principal tool the nation’s most exclusive schools have used to
diversify their campuses.

By Jess Bravin

WASHINGTON—The Supreme Court found it unconstitutional to consider race in

university admissions, eliminating the principal tool the nation’s most selective
schools have used to diversify their campuses.

Thursday’s 6-3 decision will force a reworking of admissions criteria throughout

American higher education, where for decades the pursuit of diversity has been an
article of faith.

Leaders of American business and public institutions warned in friend-of-the-court

briefs that a ruling against affirmative action would deprive the nation of leaders who
reflect the population’s racial diversity. The watershed decision sets new parameters
for the continuing national debate over what criteria are permissible to admit people
to the country’s elite institutions and hire them at its biggest companies—crucial
springboards for upward mobility in America.

University officials have insisted no substitute for racial preferences exists that can
ensure that a representative share of minority applicants—particularly Black students
—gains admission to selective institutions.

No longer able to give such applicants an automatic boost, admissions offices now
must decide where racial diversity ranks among priorities that can include academic
performance, achievement in extracurricular activities such as athletics, and
preferences for alumni and donors.

“Eliminating racial discrimination means eliminating all of it,” Chief Justice John
Roberts wrote for the court, joined by Justices Clarence Thomas, Samuel Alito, Neil
Gorsuch, Brett Kavanaugh and Amy Coney Barrett. “The student must be treated
based on his or her experiences as an individual—not on the basis of race. Many
universities have for too long done just the opposite,” he wrote.

The court’s three liberals dissented. Society “is not, and has never been, colorblind,”
Justice Sonia Sotomayor wrote, joined by Justices Elena Kagan and Ketanji Brown
Jackson. “The Court ignores the dangerous consequences of an America where its
leadership does not reflect the diversity of the People.”

Lee Bollinger, Columbia University’s president, expects five years of chaos before
higher education fully adjusts to the new legal landscape, as committees and task
forces—already in place at many schools—explore ways to employ income levels,
socioeconomic factors and other race-neutral factors to maintain diversity.

Although long expected, the decision still was a shock to academia. “Nobody really
believes it’s going to happen, even though all the evidence is right in front of you,”
Bollinger said this month.

Political reactions were immediate and polarized.

“I strongly, strongly disagree with the court’s decision,” President Biden said at the
White House. Citing what he called the need for “a new path forward,” the president
said he was directing the Education Department to analyze “what practices help build
more inclusive and diverse student bodies and what practices hold that back.”

“This is a great day for America,” said former President Donald Trump, the front-
runner for the Republicans’ 2024 presidential nomination. “People with extraordinary
ability and everything else necessary for success, including future greatness for our
Country, are finally being rewarded.”
Before the court were admissions practices at two pillars of American higher
education: Harvard College, the Ivy League titan whose name has symbolized
achievement and power for centuries, and the University of North Carolina, a public
flagship which, like many land-grant institutions, provides an elite education
subsidized by taxpayers for state residents. Both schools said that, consistent with
decades of Supreme Court precedent, a minority applicant’s race could serve as an
unenumerated plus factor that raised chances of admission.

Lower courts agreed, rejecting lawsuits organized by Edward Blum, a former

stockbroker who has brought a number of cases against laws and policies that make
distinctions based on race or ethnicity in areas such as voting and education.

“The polarizing, stigmatizing and unfair jurisprudence that allowed colleges and
universities to use a student’s race and ethnicity as a factor to admit or reject them has
been overruled,” Blum said after the ruling. “These discriminatory admission practices
undermined the integrity of our country’s civil rights laws.”

UNC Chancellor Kevin M. Guskiewicz said his university “remains firmly committed to
bringing together talented students with different perspectives and life experiences,”
adding: “While not the outcome we hoped for, we will carefully review the Supreme
Court’s decision and take any steps necessary to comply with the law.”

Harvard University’s president, Lawrence Bacow, and other university officers issued a
joint statement saying the university would comply with the decision while continuing
to pursue a diverse student body.

“To prepare leaders for a complex world, Harvard must admit and educate a student
body whose members reflect, and have lived, multiple facets of human experience,”
they said. “No part of what makes us who we are could ever be irrelevant.”

The case directly affects only the most exclusive of the nation’s universities, those
where the pool of qualified applicants vastly exceeds available spaces. Most of
America’s colleges admit most if not all qualified students, a point some
administrators made Thursday. In a statement, Arizona State University said:
“Because ASU admits all Arizona students who meet the university’s admission
requirements and does not artificially cap enrollment for students from Arizona, ASU
will continue to have one of the most diverse student bodies in the country.”

The 14th Amendment ensures that individuals receive equal protection of the laws
from state agencies including public universities, a standard that also applies to most
private colleges that receive federal funding. In general, the court has permitted racial
preferences only to remedy specific acts of illegal discrimination, not compensate for
general social injustices said to stem from historical practices.
For 45 years, the Supreme Court has recognized a limited exception to that rule for
university admissions, one based on the schools’ academic freedom to assemble
classes that support their educational mission. Diversity was a compelling interest, the
court had found, and race-conscious admissions as implemented at Harvard and
similar schools were narrowly tailored to avoid unnecessarily disadvantaging other
applicants.

The Supreme Court, its conservative majority reinforced by three Trump appointees,
has been ready to revisit precedents it considers manifestly wrong. Last year, the court
overruled Roe v. Wade, shattering 49 years of case law recognizing women’s
constitutional right to end unwanted pregnancies before fetal viability.

In 2016, the court rejected by a 4-3 vote an earlier case Blum sponsored opposing
affirmative action, but at oral arguments in October several justices questioned
whether racial preferences were necessary to maintain diversity—or if diversity was
important to maintain altogether.

“I’ve heard the word ‘diversity,’ quite a few times, and I don’t have a clue what it
means,” Thomas said then.

In a 1978 case, Regents of the University of California v. Bakke, the controlling opinion
by Justice Lewis Powell struck down a policy that set aside a minimum of 16 seats for
minorities applying to the public medical school in Davis, Calif.

But while racial quotas were barred, the opinion permitted consideration of race as one
of several characteristics a student could bring to the campus environment. Powell
reasoned that under the First Amendment, a university’s academic freedom “to make
its own judgments as to education includes the selection of its student body.”

As an example, Powell referenced the admissions policy at Harvard—the same one,

with modification over the years, the court now holds unlawful. When choosing among
academically qualified students, “the race of an applicant may tip the balance in his
favor just as geographic origin or a life spent on a farm may tip the balance in other
candidates’ cases,” the university said then. “A black student can usually bring
something that a white person cannot offer.”

Powell’s opinion was a compromise position; the other eight justices had evenly split,
with four conservatives finding no justification for racial considerations and four
liberals arguing that setting aside seats for racial minorities was permissible.

Higher education—and much of American corporations—embraced the diversity

rationale, but conservatives have viewed affirmative action as a form of social
engineering that elevates group identity over individual achievement. Public opinion,
even among minority groups likely to benefit, was at best lukewarm to racial preference
policies.

By the 1990s, activists were challenging affirmative action in several arenas—at

university boards, through voter initiatives and with test cases in court. A turning
point seemed to come in 1996, when California voters passed a ballot initiative ending
affirmative action at state universities and agencies and a federal appeals court struck
down race-conscious admissions at the University of Texas.

But when the issue reached the Supreme Court again in 2003, the justices in a pair of
cases involving the University of Michigan affirmed Powell’s Bakke opinion. The
justices struck down the undergraduate admissions formula that automatically gave
minority applicants a 20-point boost on a 150-point admissions scale, but upheld the
law school’s policy allowing consideration of race in “a flexible, nonmechanical way.”

The majority opinion, by Justice Sandra Day O’Connor, cited briefs by major
corporations and retired military officers attesting to the importance of diversity
among the leadership of American institutions.

“To cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary
that the path to leadership be visibly open to talented and qualified individuals of
every race and ethnicity,” she wrote then. “All members of our heterogeneous society
must have confidence in the openness and integrity of the educational institutions that
provide this training.”

At oral arguments for the current cases in October, several justices focused on another
passage in O’Connor’s 2003 opinion, where she noted that minority enrollment had
increased in the 25 years since the Bakke case.

“We expect that 25 years from now, the use of racial preferences will no longer be
necessary,” she wrote.

The majority opinion in that case from a generation ago, Grutter v. Bollinger, didn’t
say preferences could continue until “you’re satisfied that diversity has been achieved
or something vague like that,” Kavanaugh told UNC’s lawyer. “It said 25 years in
there.”

Write to Jess Bravin at Jess.Bravin@wsj.com

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