Washington — The Supreme Court on Thursday ruled that race-conscious admission policies of Harvard College and the University of North Carolina violate the Constitution, bringing an end to affirmative action in higher education in a decision that will reverberate across campuses nationwide.
The court ruled 6-3 along ideological lines in the University of North Carolina case, and 6-2 in the Harvard dispute, as Justice Ketanji Brown Jackson recused herself. Chief Justice John Roberts authored the majority opinion, joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Thomas read a concurring opinion from the bench. Justice Sonia Sotomayor also read her dissent aloud, the first time a dissenting justice has done so this term.
“The Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause,” Roberts wrote. “Both 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. We have never permitted admissions programs to work in that way, and we will not do so today.”
But Roberts wrote that universities can still consider “an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” Military academies are effectively exempt from the decision, due to the “potentially distinct interests” they present.
Students, the chief justice concluded, must be evaluated based on their experiences “as an individual — not on the basis of race.”
“Many universities have for too long done just the opposite,” Roberts said. “And in doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice.”
In a fierce dissent, Sotomayor said the majority opinion is “not grounded in law or fact and contravenes the vision of equality embodied in the Fourteenth Amendment.”
“Today, this Court stands in the way and rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits,” she wrote. “In so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.”
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Joined by Justice Elena Kagan and Jackson, Sotomayor said the court’s decision “subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society.”
The ruling is the latest in which the Supreme Court’s conservative majority has upended decades of precedent involving issues that have shaped American life, underscoring the impact that former President Donald Trump’s three appointed justices have had on the court.
In its last term, the Supreme Court reversed its landmark decision in Roe v. Wade, unwinding the constitutional right to an abortion recognized since 1973. That ruling amplified concerns that other longstanding precedents were at risk of being jettisoned, including those affirming that race-conscious admissions programs are within constitutional bounds.
The assumption that affirmative action would not withstand the Supreme Court’s scrutiny has now come to fruition. While the decision will be felt most acutely at highly competitive schools, universities have warned that ending race-conscious admissions programs would lead to a significant drop in representation of Black and Hispanic students, particularly at elite institutions.
More than 40% of universities, and 60% of selective schools, consider race to some degree in admissions decisions, according to Harvard’s filings with the court. Additionally, institutions such as the service academies, the U.S. military and the federal government have relied on the Supreme Court’s past decisions recognizing that the educational benefits of diversity justify limited consideration of race in admissions, according to the Biden administration.
How affirmative action arrived at the Supreme Court
The issue of affirmative action came before the court through two cases, one involving Harvard, the nation’s oldest private institution, and the University of North Carolina, the oldest public university. Both disputes were brought in November 2014 by the group Students for Fair Admissions, founded by conservative activist Ed Blum, who for years has fought to end the use of racial preferences in American life.
In the Harvard case, the organization claimed the school’s race-conscious admissions policies violated Title VI of the Civil Rights Act, which prohibits racial discrimination in any program or activity that receives federal funds, by discriminating against Asian-American applicants. Students for Fair Admissions accused Harvard of assigning Asian-American students lower ratings on personality traits than other races and limiting the number of Asian-American applicants it admits.
In the University of North Carolina fight, Students for Fair Admissions accused the university of violating the 14th Amendment’s Equal Protection Clause, as it overlooks race-neutral alternatives available to achieve diversity among its student body.
Both universities denied discriminating against Asian-American applicants.
Lower courts upheld the policies at each of the schools, finding that race was one factor among many considered in the schools’ holistic processes, and that they were consistent with the Supreme Court’s decision in Grutter v. Bollinger, the 2003 decision that said the narrowly tailored use of race in admissions decisions is allowed under the Constitution.
Writing for the majority in Grutter, Justice Sandra Day O’Connor suggested that “25 years from now, the use of racial preferences will no longer be necessary.” That proposed 2028 deadline drew questions during oral arguments in the Harvard and University of North Carolina cases of when race would no longer need to be considered in college admissions.
Roberts wrote for the majority that neither Harvard nor the University of North Carolina indicated to the court that their race-based admissions programs had end points.
“In short,” he said, “there is no reason to believe that respondents will — even acting in good faith — comply with the Equal Protection Clause any time soon.”
The Supreme Court last considered the lawfulness of race-conscious admissions programs in 2016, in a challenge to the policies at the University of Texas at Austin that was also backed by Blum. In that case, a divided court again said race could be considered to ensure student-body diversity.
But the composition of the court changed dramatically since then, with Sotomayor the only remaining justice who was in the majority seven years ago. (Kagan was recused from the case.)
The Supreme Court agreed to wade into the debate over affirmative action again in January 2022. While the Harvard and University of North Carolina cases were originally consolidated, they were unlinked after Jackson joined the court and recused herself from the Harvard dispute.
