Supreme Court Strikes Down Affirmative Action In College Programs—What Does This Mean For Universities?

The U.S. Supreme Court, in a landmark ruling, recently rejected the use of race as a factor in college admissions. The 6-3 decision, a significant blow to affirmative action, declared such practices as a violation of the 14th Amendment's Equal Protection Clause.

In the majority opinion, Chief Justice John Roberts argued that the benefits accrued by students who overcome racial discrimination should be tied to the student’s personal achievements and not their racial identity. The judgment contends that many universities have wrongly identified the color of skin as the touchstone of an individual’s identity, a choice the court deemed constitutionally intolerable.

Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett joined Justice Roberts in the majority. Meanwhile, Justice Sonia Sotomayor wrote the main dissent, backed by Justices Elena Kagan and partially by Justice Ketanji Brown Jackson. Jackson had recused herself from the Harvard case due to her previous role on Harvard's Board of Overseers.

This ruling revisits the Supreme Court's 2003 decision that upheld the University of Michigan's affirmative action policies for minority law school applicants. The decision then, led by Justice Sandra Day O'Connor, optimistically hoped that the use of racial preferences would become unnecessary in 25 years. Now, just 19 years later, the court majority has blocked colleges from using race as part of their admissions process.

The judgment arose from two separate legal challenges against Harvard University and the University of North Carolina. The schools defended their admissions policies, arguing they aimed to promote a robust, intellectually diverse campus. However, a coalition of Asian American students contested this, arguing they faced a "racial penalty" and were held to a selectively higher standard than many black and Hispanic students.

In both cases, lower courts had ruled in favor of the universities, but the Supreme Court overruled these decisions. Chief Justice Roberts argued that the admissions programs at both Harvard and UNC involved racial stereotyping and lacked meaningful endpoints. His opinion firmly asserted that the court would not permit admissions programs to operate in such a way.

Many universities have wrongly identified the color of skin as the touchstone of an individual’s identity, a choice the court deemed constitutionally intolerable.

Justice Clarence Thomas, in agreement with the majority, wrote a separate concurrence, critiquing the universities' admissions policies as rudderless, race-based preferences that were boldly unconstitutional.

The debates during the case proceedings were intense, with Chief Justice Roberts and Justice Alito particularly challenging Harvard's lawyer, Seth Waxman, on the reasons for Asian American students' lower personal scores on applications.

What Is Affirmative Action and Why Is It Detrimental?

Affirmative action is a policy designed to supposedly level the playing field for historically underrepresented or marginalized groups in sectors such as education and employment. The principle underpinning affirmative action is to correct past or present discrimination and foster diversity. At the college level, affirmative action can be implemented in various ways. One common method is through admissions policies that consider race or ethnicity as one factor among many others in the application review process. The goal here is to promote diversity within the student body and provide opportunities to groups who have been historically disadvantaged in accessing higher education.

Affirmative action in college admissions has been the subject of ongoing debate and legal scrutiny. Supporters argue that it's necessary to counter systemic biases and achieve a diverse student body, which they claim enriches the educational experience for all students. Detractors, on the other hand, argue that it can lead to reverse discrimination and undermines the merit-based principle of college admissions. In some states in the U.S., the use of race or ethnicity as a factor in college admissions has been banned due to these controversies. As such, the use and impact of affirmative action vary widely based on regional context, legal environment, and individual institutional policies.

Affirmative action programs, while designed with benevolent intentions, often lead to more harm than good. They can potentially inflict significant social costs on the entire population. Inefficiency due to favoring less qualified individuals over more qualified candidates can lead to societal losses. There are very real drawbacks, such as higher failure rates among beneficiaries and the suspicion surrounding the credentials of minority students. A popular defense for these policies is precedent, citing examples like preferences for athletes and alumni children. However, critics argue that this arbitrary shifting of the burden of proof ignores the demonstrable social costs of affirmative action. Any justification or criticism should be based on actual outcomes, not just precedent.

Affirmative action is critiqued for being potentially a negative-sum process, where the benefits to one group are outweighed by the losses to another, resulting in a net loss to society. The displacement of higher performing students by lower performing ones in the name of diversity is used as an example. The polarization, societal tension, and even violence that can result from these policies are also highlighted.

Renowned economist Thomas Sowell has written extensively about how affirmative action has actually been detrimental to the very minorities that it claims to help. He says there are many black students who are accepted into universities simply because of the color of their skin, rather than their merit, which results in their severe underperforming in school and not being able to keep up with the rest of the class. This of course results in poor outcomes in their search for a job as well. Making special exceptions for students because of inherent qualities that they can't control (race, gender, etc.) doesn't provide them any advantages; it just sets them up for failure and causes them to have unrealistic expectations of themselves.

Many people are excited about this development, adding that affirmative action was just another way to perpetuate the bigotry of low expectations. It's insulting at best to change the standards for some minority students, which implies they aren't capable of competing at the normal level. Some people are sharing information on just how unfair affirmative action was, especially toward Asian students, who generally perform the best on tests and in school.

"An African American student in the 40th percentile of their academic index is more likely to get it than an Asian student in the 100th percentile," content creator Greg Price tweeted. "Black students in the 50th percentile are more likely to get in than white students at the top."

While affirmative action is supposed to help one race move upward (in theory), what actually happens is that other groups of individuals are unfairly targeted and mistreated simply because of an inherent quality they don't have any control over: their race. Critics of affirmative action are glad to see this ruling from SCOTUS, but will it really change anything at the college level?

Will This SCOTUS Ruling Change Anything in University Admissions?

Although this seems like a big win, some people are skeptical that it will truly change anything at the college level. "I’m not convinced the Supreme Court decision on affirmative action is the victory that we think it is," conservative commentator John Doyle tweeted. He shared a screenshot of part of Justice Roberts' opinion:

"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 end points, those admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. At the same time, nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university. Many universities have for too long wrongly concluded that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned, but the color of their skin. This Nation’s constitutional history does not tolerate that choice."

Twitter user @CovfefeAnon pointed out that the Court is unable to make universities change anything in their admission process, especially if the Court even goes far enough to claim that "nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life." In other words, colleges can still ask for an applicant's race and use that information to decide whether an individual will be admitted.

"Ultimately the Court is powerless to make a binding decision on the universities anyway - the universities will simply ignore any ruling and keep doing what they were doing," @CovfefeAnon tweeted. "DoJ isn't going to go after them for it."

The ruling still leaves room for universities to consider race "so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university." The problem is, there are so many ways this can be interpreted, and universities are sure to push the boundaries with this loophole.

"Do we really believe they won’t just continue the process by proxy? No chance. We don’t have power like that yet. That’d require a lot more than a SCOTUS ruling," Doyle tweeted.

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