Analyzing the Supreme Court’s Decision to End Affirmative Action

Source for image: Associated Press / Mariam Zuhaib

The Supreme Court’s conservative supermajority found The University of North Carolina Chapel Hill and Harvard University’s race-conscious college admissions process to be unconstitutional, effectively ending affirmative action and overturning forty years of legal precedent. 

Chief Justice John Roberts, joined by the other five conservative justices on the Court in concurring with the plaintiff, authored the majority opinion – finding that both UNC and Harvard’s admission programs violated the Equal Protection Clause of the 14th Amendment. According to this decision, colleges can no longer explicitly consider a student’s race in the admissions process, a significant blow to the diversity efforts of elite colleges across the country. 

Brought forward by the activist group Student for Fair Admission (SFFA), which is led by conservative activist Edward Blum, the lawsuit alleged that race-conscious admission programs are unconstitutional and negatively impact Asian American and White applicants. This is one of many cases Edward Blum has brought to the Supreme Court to challenge affirmative action and voting rights laws over the last few decades. In his previous attempt to overturn affirmative action, Fisher v. University of Texas, the Supreme Court voted 7-1 that colleges may use race as a factor in their admissions process under a standard of strict judicial scrutiny. Under the standard of strict scrutiny, courts must find that race-conscious admissions serve a compelling government interest and that no race-neutral alternatives would provide the same benefits. However, in this most recent decision, Chief Justice Roberts concluded that neither UNC nor Harvard’s race-conscious admissions processes met the court’s strict scrutiny requirements. 

“Respondents’ admissions systems—however well-intentioned and implemented in good faith—fail each of these criteria,” Chief Justice Roberts writes. “They must therefore be invalidated under the Equal Protection Clause of the Fourteenth Amendment.” 

Applying the criteria for strict scrutiny, Chief Justice Roberts argues that the compelling interests sought by UNC and Harvard, such as “training future leaders in the public and private sectors” and “promoting the robust exchange of ideas,” cannot be subjected to meaningful judicial review. “Although these are commendable goals, they are not sufficiently coherent for purposes of strict scrutiny,” he explains. “How is a court to know whether leaders have been adequately ‘trained’; whether the exchange of ideas is ‘robust’; or whether ‘new knowledge’ is being developed?”

In addition to the difficulty of evaluating these goals, Chief Justice Roberts argues that UNC and Harvard failed to make a meaningful connection between their diversity efforts and the educational goals they are pursuing. “It is far from evident, though, how assigning students to racial categories and making admissions decisions based on them furthers the educational benefits that the universities claim to pursue.” While Roberts argues that there is not enough evidence to demonstrate the connection between a diverse student body and educational benefits, it should be noted that the court has made the connection before. In a previous case regarding affirmative action programs, Regents of the University of California v. Bakke, Justice Lewis Powell writes: “The atmosphere of ‘speculation, experiment, and creation’ so essential to the quality of higher education—is widely believed to be promoted by a diverse student body. ... [I]t is not too much to say that the nation's future depends upon leaders trained through wide exposure to the ideas and mores of students as diverse as this Nation of many peoples.” 

While the current decision effectively prohibits colleges from explicitly using race in their admissions process, it does allow colleges to consider an individual's experience of race. As Roberts explains, “Nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life… the student must be treated based on his or her experiences as an individual—not on the basis of race.” Despite this concession, many experts believe that this decision will affect diversity efforts at elite universities. 

Using admissions modeling, researchers at Georgetown University found that “without race-conscious admissions practices, maintaining or exceeding existing levels of representation for all underrepresented racial/ethnic groups would require upending the selective college admissions system as we know it.” These changes would include eliminating preference for legacy students and redesigning the athletic recruitment system, among other systemic changes. 

For the University of North Carolina, this decision will have major implications for the current admissions process. In an initial email to the Carolina Community, Chancellor Kevin Guskiewicz expressed his disappointment regarding the Supreme Court’s decision but acknowledged The University’s intention to follow the ruling. “I know that this decision may raise questions about our future and how we fulfill our mission and live out our values. But Carolina is built for this, and we have been preparing for any outcome,” he wrote. “In the coming weeks, we will communicate our plans with the campus community.”

However, in the week following the Court’s decision Chancellor Guskiewicz announced two major changes to address the Supreme Court’s affirmative action decisions: “First, Carolina will provide free tuition and required fees for incoming undergraduates from North Carolina whose families make less than $80,000 per year,” and “[s]econd, as part of our commitment to reach future Tar Heels throughout the state, we have hired additional outreach officers as part of our admissions team.”

Such action plans will be essential in not only maintaining, but improving, the access to education that diversity efforts intend. North Carolina  – with its pride and focus on expanding education through public education – is taking steps that may serve as an example for other significantly endowed and research-based universities to address the barriers from which discrimination spread and which have historically prevented many from attending higher education institutions.