The End of Affirmative Action

By German Lopez, NYT    June 30, 2023, 6:12 a.m. ET

Demonstrators near the Supreme Court yesterday. Credit…Kenny Holston/The New York Times

The current Supreme Court has been out of step with public opinion in some of its highest-profile rulings, including on abortion and environmental protection. Yesterday’s ruling restricting race-based affirmative action at colleges and universities was different.

In a 6-3 decision, the court’s six conservative justices declared that colleges’ use of race as a factor in student admissions is unconstitutional. They cited the Fourteenth Amendment, which prohibits discrimination based on race.

Their ruling appears to align with public opinion. Most Americans oppose the consideration of race or ethnicity in college admissions, surveys have found. Even in liberal California, the public has voted twice to prohibit affirmative action. (Americans’ opinions can shift somewhat depending on how the survey question is framed.)

The public’s views could make it difficult for Democrats to rally Americans in support of affirmative action as they have with abortion rights since the court overturned Roe v. Wade last year. Still, Democrats quickly condemned the affirmative action ruling. “We cannot let this decision be the last word,” President Biden said yesterday.

Whatever the political outcome, the decision upended decades of law and the higher education landscape. The ruling will shift the makeup of many of America’s top universities — and the prospects of students who want to attend them.

The ruling

The decision addressed cases involving Harvard and the University of North Carolina. Both schools say they consider race in admissions to diversify their student bodies, particularly by boosting Black and Latino applicants who may be disadvantaged by racism. But critics say that Black and Latino students are helped to the detriment of students of races or ethnicities that are already more represented on campuses, particularly Asian Americans.

Writing the majority opinion, Chief Justice John Roberts sided with the policy’s critics. He stated that affirmative action is racially discriminatory and unconstitutional. “Eliminating racial discrimination means eliminating all of it,” he wrote.

The ruling did not prohibit all mentions of race in college applications. Prospective students can, for example, write in application essays about how race has affected their lives. But Roberts warned that schools still can’t use race in determining admissions even when considering those essays. Instead, mentions of race can only demonstrate an applicant’s personal accomplishments or virtues.

“A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination,” Roberts wrote. “In other words, the student must be treated based on his or her experiences as an individual — not on the basis of race.”

The court’s three liberals dissented. Justice Sonia Sotomayor summarized her dissent from the bench, a rare move that signals deep disagreement. “Today, this Court stands in the way and rolls back decades of precedent and momentous progress,” she wrote.

She added that the ruling “cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.”

Whether a justice views affirmative action as positive or negative appears to hinge on whether he or she primarily sees it as holding down or pulling up prospective students. The majority and concurring opinions focused on affirmative action’s downsides for white and Asian students, while the dissents focused on the benefits to Black and Latino students. The disagreement comes down to which effect someone believes matters more.

What comes next

Some states have already banned race-based affirmative action, offering real-world examples of what could happen. Many schools saw drops in Black and Latino student attendance, my colleague Stephanie Saul, who covers education, wrote. The same could happen at Harvard, North Carolina and other universities.

But one large university system, the University of California, adopted policies that helped increase the number of Black and Hispanic students after the state ended affirmative action. California’s experience indicates that schools can, if they’re willing, take steps that improve diversity even without explicitly considering race.

For most college students, the ruling will have limited direct impact. Few colleges outside of elite institutions have affirmative action policies; they accept a majority of applications.

But the overall makeup of the higher education landscape understates the effects of the ruling. Elite colleges have a disproportionate impact on American society. Consider that eight of the nine justices who voted on yesterday’s ruling went to Ivy League schools. And two, Sotomayor and Clarence Thomas, have said that they benefited from affirmative action. Now, they help decide the law of the land.

More on the ruling

• Read key passages from the ruling and dissents.

• Legal experts expect a flood of lawsuits to define the boundaries of “race neutral” admissions, including whether schools can recruit students by ZIP code.

• For applicants, the essay will become more important and the SATs less.

• Similar challenges look likely to follow against corporate diversity efforts.

• Admissions experts say elite schools will probably face more pressure to end legacy admissions, which favor the children of alumni.

• The ruling is expected to benefit historically Black colleges and universities.

• Biden assailed the decision and said colleges should find other ways to diversify their student bodies. “This is not a normal court,” he said.

• Affirmative action created a race-obsessed American university culture, and the court ruling will make it worse, Tyler Austin Harper writes for Times Opinion.

• The most passionate opposition to affirmative action centered on its most reparative element: compensation for centuries of exclusion, Jerome Karabel writes for Times Opinion.

• The court also broadened protections for religious workers in a separate case involving a mail carrier who refused to work Sundays.

• The court is expected to end its term today with decisions on student debt relief and L.G.B.T.Q. rights.