In a 6-3 ruling, the Supreme Court struck down affirmative action efforts in higher education as violating the Constitution’s Equal Protection Clause and the Civil Rights Act. This was a long-term goal of the Far Right. The decision comes from a Court that had repeatedly upheld affirmative action programs in higher education for nearly half a century.
It comes at a significant cost to the communities who those programs have long helped. It also harms our entire society by severely limiting our ability to benefit from the contributions of students from all backgrounds.
The Court’s previous support for affirmative action
In the 2003 Grutter case, the Court rejected an Equal Protection challenge to a public law school’s limited use of race and ethnicity in admissions to promote diversity in the educational experience. The Grutter majority anticipated that in a quarter century, affirmative action programs would no longer be necessary to achieve diversity. The Court reaffirmed Grutter in 2016 in the Fisher case involving the University of Texas, again confirming that universities have a compelling interest in the educational benefits that flow from student body diversity.
In an opinion written by former Justice Anthony Kennedy, the court upheld the school’s affirmative action program because all consideration of applicants remained individualized and there were no quotas and no numerical targets used in the selection process. The program met the Court’s most stringent of review (“strict scrutiny”), which is used in cases where governments use racial classifications. It was a major victory for Americans who cherish our national ideals of fairness and equal opportunities for all.
But then came Donald Trump and Mitch McConnell. They installed three far-right justices and created the current 6-3 superconservative majority. This led to a very different result from seven years ago.
How did the majority rule?
Chief Justice Roberts wrote the majority opinion on behalf of the entire far-right six-justice majority.
Among other things, the majority did not even concede that student body diversity is a compelling interest. Instead, Roberts referred to “the interests [Harvard and UNC] view as compelling.” According to the majority, courts have no way of measuring whether a program is even meeting its diversity goals. As specific examples, the justices claimed it would be difficult for lower courts to measure whether a school had developed a sufficiently robust market of ideas or whether students were actually acquiring new knowledge based on diverse outlooks. This seriously undermined the Court’s previous holdings that promoting diversity can be a compelling government interest.
Roberts also framed affirmative action programs as harmful discrimination. He did this by focusing on student applicants who don’t benefit from it. This is consistent with how those in power have often sought to divide us, knowing that we are stronger when we stand together.
The majority opinion also cited Grutter’s expectation in 2003 that affirmative action programs would no longer be needed in 25 years. The Court reinterpreted this hope into a constitutional commandment that affirmative action programs have a clear end point built into them. Roberts wrote that nothing in Harvard or UNC’s programs indicated when they would end, short of setting up an unconstitutional quota system. He rejected as insufficient the universities’ frequent reviews of their programs to determine if they remain necessary.
What did the concurring far-right justices say?
Although all the far-right justices joined Roberts’s majority opinion, several of them also wrote their own concurring opinions. Justice Clarence Thomas insisted that his “originalist” approach to the Constitution prohibited “all forms of discrimination based on race.” Of course, he was framing affirmative action as constitutionally no different from intentional racial discrimination.
Justice Neil Gorsuch (joined by Thomas) questioned whether Title VI should always be read to mean the same thing as the Equal Protection Clause. He wrote that independent of the Equal Protection Clause, he read Title VI as prohibiting affirmative action programs. And Justice Brett Kavanaugh wrote to say that he believed Grutter had set a one-generation deadline for affirmative action programs in higher education to end, and we have reached that deadline.
How did the dissenting justices respond?
Justice Sonia Sotomayor wrote a powerful dissent, joined by Kagan and Jackson. As she has in the past, she pointed out that the far-right justices’ assumptions around race are not based on reality:
[T]he 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.
Rather than advancing equal protection, the majority was “further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society.”
(In fact, the tie between education and our democracy is one of the reasons People For the American Way stands so strongly in defense of the freedom to learn.)
Among other things, Sotomayor explained that the majority mischaracterized the Court’s decisions in Brown v. Board of Education and afterwards. Although the majority claimed the Court was pursuing “colorblindness,” such an “indifference to race is not an end in itself.” Instead, “the ultimate goal is racial equality of opportunity.” Sotomayor described the majority’s approach as “grounded in the illusion that racial inequality was a problem of a different generation.”
Justice Ketanji Brown Jackson also wrote a powerful dissent, joined by Sotomayor and Justice Elena Kagan. Comparing the current majority to the monarchy before the French Revolution, she wrote:
With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces “colorblindness for all” by legal fiat. But deeming race irrelevant in law does not make it so in life.
Indeed, it does not. Jackson gave a detailed description of generations of government policies that impoverished Black Americans:
Those past preferences carried forward and are reinforced today by (among other things) the benefits that flow to homeowners and to the holders of other forms of capital that are hard to obtain unless one already has assets.
She rejected the contention that racial discrimination is an artifact of a past time:
Although formal race-linked legal barriers are gone, race still matters to the lived experiences of all Americans in innumerable ways, and today’s ruling makes things worse, not better.
(Jackson recused herself from the Harvard case, but the legal analysis of the UNC case was the same.)
What does this decision mean for the future?
This is not the first time powerful forces have sought to divide our communities, but we will stand strong together. When everyone has access to higher education, everyone prospers. We will continue to fight for equal opportunity for all in our diverse multiracial democracy.
While the far-right majority has ended affirmative action in higher education, what happens next will be decided, at least initially, in the lower courts. The Students for Fair Admission case is about higher education. Doubtless, far-right advocates will be eager to cite this case as an excuse to end diversity efforts in other contexts, such as government grant programs and industry diversity initiatives.
Those issues will be decided in the lower courts in the months and years to come. That is one reason it is so important to fight to confirm President Biden’s fair-minded judicial nominees. In fact, several Biden judges have already been instrumental in rejecting attacks on efforts to promote diversity, such as in admissions to Thomas Jefferson high school in Virginia and in a Pfizer program to promote diversity in its employee ranks. It is just as important for the Senate to set aside old practices that give far-right senators a veto over who gets named to be federal district judges in their states.