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Supreme Court Strikes Down Affirmative Action

The decision ends a practice that has opened up higher-education opportunities for Black students for decades.

Proponents for affirmative action in higher education rally in front of the U.S. Supreme Court in October before oral arguments in Students for Fair Admission v. University of North Carolina, and Students for Fair Admissions v. Harvard College. (Chip Somodevilla/Getty Images)

The U.S. Supreme Court on Thursday struck down affirmative action, a practice that’s opened up higher-education opportunities for Black students for nearly half a century.

The decision, which severely limits colleges and universities’ ability to consider race as a factor in admissions, has unsettled civil rights advocates, who now fear for the future of campus diversity.

“Affirmative action exists because we cannot rely on colleges, universities, and employers to enact admissions and hiring practices that embrace diversity, equity, and inclusion,” NAACP President and CEO Derrick Johnson said in a statement. “Race plays an undeniable role in shaping the identities of and quality of life for Black Americans. In a society still scarred by the wounds of racial disparities, the Supreme Court has displayed a willful ignorance of our reality.”

President Joe Biden denounced the landmark ruling during a speech at the White House on Thursday. “This is not a normal court,” he said as he walked away from the lectern. With Republican-appointed justices holding a solid majority in recent years, the high court’s rulings have attacked decades-old precedents, including its decision last year to overturn Roe v. Wade.

Biden stressed that schools ought to continue taking into account applicants’ characteristics related to diversity, such as where they grew up and the “particular hardships that each student has faced in life, including racial discrimination.”

Two affirmative action cases were before the court this term: Students for Fair Admissions v. University of North Carolina, and Students for Fair Admissions v. Harvard College. The decision for the former split 6-3, with all the Republican-appointed justices in the majority; the decision for the latter was 6-2 because Justice Ketanji Brown Jackson, who previously served on Harvard’s Board of Overseers, recused herself.

Chief Justice John Roberts’ opinion for the majority said that both schools’ race-conscious admissions policies “cannot be reconciled with the guarantees” of the Fourteenth Amendment’s Equal Protection Clause, which secures “equal protection under the laws” for all citizens. But he added, “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”

The court’s move to throw out affirmative action was largely expected, as the court has shifted further to the right over the past few years, with the appointment of three nominees of former President Donald Trump. And Roberts’ views on affirmative action have been known for more than a decade. In a 2007 case that centered on public school integration plans, he claimed that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” 

Justice Clarence Thomas, who has criticized affirmative action for decades, wrote a concurring opinion, saying that the practice casts doubt on the existence of Black people in elite spaces. A graduate of Yale Law School, he has said that the presumption that Black students don’t belong there was a result of affirmative action, not racism.  

In a withering dissent, Jackson slammed the majority and its “let-them-eat-cake obliviousness.”

“If the colleges of this country are required to ignore a thing that matters, it will not just go away. It will take longer for racism to leave us,” she wrote. “And, ultimately, ignoring race just makes it matter more.”

The fall of race-conscious policies in college admissions has left civil rights advocates reeling with frustration. The National Association of Diversity Officers in Higher Education underscored the effects that the Supreme Court’s actions could have on students of color and on the ability of universities to govern themselves.

“Today’s rulings present yet another obstacle for students seeking equitable access to the opportunities that a college degree offers, such as higher earnings and lower rates of unemployment,” the group said in a statement. “The rulings challenge institutions’ autonomy to operate in the way they choose. They will make it more difficult for all students to benefit from the educational excellence that results from diverse learning environments.”

Read more: Texas’ College DEI Ban Is the Latest to ‘Turn Back the Clock on Racial Equality’

Higher-education experts have long been clear about the benefits of affirmative action.

“Having the ability to consider race in the admissions process, even at a minimal level, has helped institutions achieve levels of diversity that I think most of them would argue have been beneficial to the learning environments they’re trying to create,” Bryan Cook, the director of higher education policy in the Center on Education Data and Policy at the Urban Institute, recently told Capital B.

To nourish racial diversity without the help of affirmative action, schools will have to focus on proxies for race, such as ZIP codes and family wealth. Cook and his colleague Elise Colin explored some of these alternatives in a new analysis. Yet these workarounds, they say, are far from perfect.

“In states that have eliminated affirmative action, studies have consistently found declines in the admission and enrollment of Black, Latinx, and Indigenous people,” Cook and Colin explain, referring to schools in California, Michigan, and Washington. “These declines are especially concentrated in selective and flagship institutions.”

Donald Harris, the associate dean for academic affairs and the equity, diversity, and inclusion liaison at Temple University’s Beasley School of Law, put it a little bit more bluntly, saying that efforts to secure racial diversity indirectly have “failed miserably.”

“There really is no race-neutral way to achieve what you can if you take race into account,” he recently told Capital B. “There just isn’t.”

This story has been updated to include comments from President Joe Biden and Supreme Court Justice Ketanji Brown Jackson.