Supreme Court bans affirmative action in higher education

The Supreme Court on Thursday ruled that race cannot be considered in higher education admissions, a decision that strikes a political third rail, alters American life and promises to reshape admissions policies at public and private colleges in 41 states.

The conservative Supreme Court’s 6-to-3 decision to ban affirmative action in higher education had been expected for months. The case challenged admissions programs at Harvard and the University of North Carolina.

Chief Justice John Roberts said in the court’s majority opinion that a student “must be treated based on his or her experiences as an individual—not on the basis of race.”

“Many universities have for too long done just the opposite,” he wrote. “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.”

The ruling in the twin challenges, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, appeared to allow schools a narrow avenue to boost racial diversity without expressly considering race. Roberts wrote that schools can consider “discussion” of how racial barriers impacted individual students so long as the applicants are treated on the basis of their “experiences” not “on the basis of race.”

The ruling did not appear to apply to military academies. Roberts said in a footnote that the decision exempted them and cited “potentially distinct interests that military academies may present.”

Still, the landmark ruling could have a large and lasting influence on American campuses, increasing white and Asian enrollment at elite schools at the expense of Black and Hispanic students.

The Supreme Court’s three liberal justices had sought to maintain the legal regime reinforced seven years ago in Fisher v. University of Texas, a 4-to-3 decision that upheld the legality of race-conscious admissions.

But the high court, remade by former President Donald Trump, has tilted sharply to the right since 2016, strengthening the hand of conservative justices who have long loathed affirmative action, and leaving the liberals powerless to save the polarizing practice.

The new affirmative action ruling extends the fast-growing legacy of the court’s current 6-to-3 conservative supermajority. Trump appointed three of the court’s six conservatives.

The court has moved aggressively over the last two terms to recast American law, erasing half-century-old abortion protections, expanding gun rights and eroding the power of the Environmental Protection Agency.

Public polling in recent years has suggested that a majority of Americans oppose affirmative action in college admissions, sometimes by dramatic margins. But the survey results have been erratic.

Proponents cite a variety of interests, including counterbalancing racial inequities in society and providing benefits all students reap from diversity.

Before the ruling, nine states had enacted bans on affirmative action in public education. California, the largest of these states, saw a sharp drop in Black and Hispanic enrollment at its top public universities after voters chose to outlaw the practice through a 1996 referendum.

New York State permitted affirmative action.

In upending a half-century of jurisprudence by banning affirmative action nationwide, the Supreme Court fulfilled the assessment of the conservative Justice Sandra Day O’Connor, who wrote in a 2003 decision upholding the practice: “We expect that 25 years from now, the use of racial preferences will no longer be necessary.”

But the Supreme Court’s liberal justices suggested in the fall that American society had not come so far. At oral arguments, Justice Sonia Sotomayor framed affirmative action as a playfield leveler.

“If you are Black, you are more likely to be in an under-resourced school,” said Sotomayor, a Latina from the Bronx who has described herself as the product of affirmative action. “You are more likely to be taught by teachers who are not as qualified as others. You are more likely to be viewed as having less academic potential.”

And Justice Elena Kagan, a Manhattan-raised liberal and former dean of Harvard Law School, suggested the death of affirmative action would have damaging consequences far beyond college campuses.

“These are the pipelines to leadership in our society,” Kagan said in October. “It might be military leadership. It might be business leadership. It might be leadership in the law. It might be leadership in all kinds of different areas.”

“Now, if universities are not racially diverse,” she said, “then all of those institutions are not going to be racially diverse either.”