Striding boldly into the midst of America’s fierce modern debate over racial equality, a divided Supreme Court on Thursday struck down the use of race as a factor in deciding government benefits and privately-run programs that use federal funds.
The 6-to-3 decision, applying explicitly to policies for deciding which students get admitted to colleges and universities, in practical effect overturns two of the Court’s prior rulings – in 1978 and 2013 – that have allowed the use of race as a “plus factor” in admissions (but not rigid racial quotas, as such).
The majority opinion, written by Chief Justice John G. Roberts, Jr., did not say explicitly that those rulings were being cast aside, but other Justices said in their separate opinions that that was the actual effect.
Although this was a ruling only about race in higher education, it is based on the broad equality principles of the Constitution, and thus very likely will end the use of race in other government programs – such as government contracting and employment. Those who favor a “colorblind” society may well see a wider basis for pursuing their agendas. Only future cases will show how far the Court will take the new constitutional declarations.
One irony of the new decision was that it nullified a college admissions policy used now by Harvard College, the same institution that the Court had allowed to use a racial “plus factor” in a policy that was upheld in the 1978 ruling in Bakke v. University of California Regents. The Bakke decision was reaffirmed in the Court’s 2003 decision (Grutter v. Bollinger), a case that involved involving admissions to the University of Michigan Law School.
Those two were the Court’s most important prior rulings on so-called “affirmative action” – that is, the use of race as a basis for remedying racial bias, with a person’s race explicitly taken into account to promote inclusive or diverse policies or programs.
Breaking sharply with that pattern, the new decision brought binding new interpretations of the Fourteenth Amendment’s equality mandate and would seem to apply from here on to any government program – federal, state or local – that is keyed to racial classifications. It also is likely to influence future interpretations of civil rights law as applied to private programs funded, in any way, by the federal government.
The decision came out of a strict reading of the Constitution’s guarantee of “equal protection of the laws,” part of the Amendment added to the basic document in July 1868, after the Civil War. Although that Amendment only applied to government action, private educational institutions like Harvard must obey the same equality mandate under Title VI of the 1964 federal civil rights act, involving private schools and colleges.
The other college involved in Thursday’s ruling is the University of North Carolina at Chapel Hill. It is the nation’s oldest public university; Harvard, privately run, is the nation’s oldest higher educational institution. Because the North Carolina institution is part of state government, it must obey the Fourteenth Amendment’s equality clause.
The new ruling came in a bulky 237-page document – eight pages of up-front summary, 131 pages by Justices in the majority, and 98 pages by the dissenters. The majority included all of the Court’s conservatives – the Chief Justice and Justices Samuel L. Alito, Amy Coney Barrett, Neil M. Gorsuch, Brett M. Kavanaugh and Clarence Thomas. Only Alito and Barrett did not write.
The Court’s three liberals – Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson – dissented. Justice Sotomayor wrote the main dissent and Jackson wrote separately. Kagan did not write separately. (Jackson took part only in the North Carolina case; she took herself out of any role in the Harvard case because she had previously been an officer of Harvard before she joined the Supreme Court.)
Roberts’ majority was starkly plain in its declarations that race is a constitutionally forbidden factor under the Fourteenth Amendment – echoing a theme of his opinions for years in cases involving race as a government policy factor. His opinion Thursday means, basically, that no college covered either by that Amendment or by Title VI can validly base any choice of its student body on any applicant’s race – as such.
“Many universities,” the opinion said, “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….Eliminating racial discrimination means eliminating all of it.”
One clear implication of those declarations is that the Court has now rejected, flatly, the concept that improving the racial diversity of a college’s student body is a valid academic benefit that results from taking race into account at least as a “plus factor.” That was the argument that had saved “affirmative action” admissions policies in the Court’s prior rulings.
In other opinions Thursday by others who voted in the majority, it was suggested that colleges could continue to seek diversity by other means than race identity – such as ending the practice of saving seats for the children of alumni, faculty or donors, or for student athletes or others with special skills, or switching to some admissions based on family poverty or low income.
The Chief Justice, near the end of the main opinion, did say that the ruling did not mean that college admissions policies were forbidden to invite an applicant to discuss how race had affected that individual’s life, “so long as that discussion is concretely tied to a quality of character or unique ability that this particular applicant can contribute to the university.”
This idea was not spelled out more fully, so if college admissions officers do attempt to adopt that measure, that, too, might get tested as racially discriminatory, thus leaving it to future court cases to sort out what can and cannot be done in such essays. The conservative activist group that won the ruling on Thursday, Students for Fair Admissions, came into existence with the sole goal of ending any and all uses of race in college student selection. Its challenges to these two universities failed in lower courts, but succeeded in the end.
Justice Sotomayor, in the main dissenting opinion, harshly rejected Roberts’ attempt to leave open the option of student essays as a way to soften somewhat the ruling’s impact; she described it as “nothing but an attempt to put lipstick on a pig.” Her 69-page opinion for the dissenters was among the most aggressively worded opinions from a Justice known for wielding a withering pen.
For example, she wrote: “In the end, the Court merely imposes its preferred college application format on the nation, not acting as a court of law applying precedent but taking on the role of college administrators to decide what is better for society.”
One curious aspect of the majority opinion is that, in a brief footnote, it appeared to suggest that the ban on the use of race in college admissions may not apply to the military academies. That was in response to the federal government’s argument that the military has special needs for racial diversity. The footnote implies that that could make a difference, if the issue were to arise in a future case. It would be no surprise if the Students for Fair Admission moved to challenge that implication.
In terms of legal logic, the Thursday ruling specified that the Harvard and UNC admissions policies had failed the Fourteenth Amendment equality test for four reasons: first, the policies provide no social policy rationales for the use race that are of a kind that can be measured by a court; second, there is no proof that using race is actually connected to a goal of diversity in the student body; third, the two universities’ policies at issue actually operate as a “stereotype” with racially discriminatory effects, such as excluding more Asian-American applicants, and, fourth, neither one of the policies explicitly sets a date for when it would no longer be needed to use race in order to achieve diversity.
That fourth point harked back to a comment that then-Justice Sandra Day O’Connor had made when the Court decided the Michigan Law School case 20 years ago: that, perhaps in 25 years, the nation would have achieved a racially diverse society so that affirmative action would no longer be needed. Roberts’ opinion turned that comment into one of the flaws in the two universities’ policies: after 20 years, he noted, they still had no plan to end the use of race in admissions.
There is one final aspect of the resuits announced Thursday that might suggest the Court could go even further in the future to outlaw reliance on race, at least when institutions receiving federal funds are involved.
In an opinion for himself and jointed by Justice Thomas, Justice Gorsuch argued that Title VI of the 1964 civil rights law should be interpreted as going even further than the Fourteenth Amendment in banning the use of race in access to educational benefits or program that get federal money.
Title VI, Gorsuch noted, does not require proof – as the Fourteenth Amendment does – that race is forbidden only when it results in actual discrimination. The 1964 law simply bans it – period – in any educational activity that gets federal money, according to his reading, no matter what impact it has or does not have. The Chief Justice’s main opinion noted Gorsuch’s mention of that, but said no one had asked the Court to reconsider its prior view that the Fourteenth and Title VI are to be interpreted as having the same reach. That might come up again in the future.
