Race-Based Affirmative Action In College Admissions Unconstitutional : US Supreme Court

Holding that race cannot be considered while granting college admissions to students, the Supreme Court of the United States of America declared as unconstitutional the race-conscious admission policies at the Harvard University and the University of North Carolina, which were being followed as an affirmative action to ensure representation for marginalised and under-represented groups.

The decision was 6:3 against University of North Carolina and 6:2 against Harvard University, with the liberal judges penning a forceful dissent. Justice Ketanji Brown Jackson recused from hearing the case related to Harvard University.

The ruling came in an appeal filed by a group named 'Students for Fair Admissions (SFFA)', who argued that race-based admission program violated the Equal Protection Clause of the Fourteenth Amendment to the US Constitution. Agreeing with the SFAA, the majority held that the impugned admission policies amounted to race-based discrimination.

"Because Harvard’s and UNC’s admissions 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, those admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause", the majority held. At the same time, it clarified that "nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university".

"At the same time, as all parties agree, nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today", the majority judgment stated.

It held that the Universities have not demonstrated how the race-based admissions programs advance a compelling and legitimate state interest.

"To achieve the educational benefits of diversity, respondents measure the racial composition of their classes using racial categories that are plainly overbroad (expressing, for example, no concern whether South Asian or East Asian students are adequately represented as “Asian”); arbitrary or undefined (the use of the category “Hispanic”); or underinclusive (no category at all for Middle Eastern students). The unclear connection between the goals that respondents seek and the means they employ preclude courts from meaningfully scrutinizing respondents’ admissions programs", the majority held.

Chief Justice John Roberts, who wrote the lead judgment for the majority, stated : "Many universities 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". 

Justice Clarence Thomas, the nation's second black justice agreed and wrote that such programmes were "patently unconstitutional". "Universities' self-proclaimed righteousness does not afford them license to discriminate on the basis of race," he said.

The majority judgments extensively quoted from Brown vs Board of Education, which held as unconstitutional the 'separate but equal regime' in admissions.

Ignoring race will not equalize a society that is racially unequal : Dissent

Justice Sonia Sotomayor wrote a powerful dissent, stating that the majority's opinion is "not grounded in law or fact and contravenes the vision of equality emobidied in the Fourteenth Amendment". She opined that the majority holding "cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter".

She stated that the majority view ignored the settled law that Equal Protection Clause allows the limited use of race in college admissions in service of the educational benefits that flow from a diverse student body.

"Entrenched racial inequality remains a reality today. That is true for society writ large and, more specifically, for Harvard and the University of North Carolina (UNC), two institutions with a long history of racial exclusion. Ignoring race will not equalize a society that is racially unequal. What was true in the 1860s, and again in 1954, is true today: Equality requires acknowledgment of inequality", she wrote.

Disagreeing with the view that race-based admissions perpetuate racial stereotypes, she wrote :

"It is not a stereotype to acknowledge the basic truth that young people's experiences are shaded by a societal structure where race matters. Acknowledging that there is something special about a student of color who graduates valedictorian from a predominantly white school is not a stereotype. Nor is it a stereotype to acknowledge that race imposes certain burdens on students of color that it does not impose on white students"

"The absence of racial diversity, by contrast, actually contributes to stereotyping", she stated.

Justice Sotomoyar also addressed the concerns that the program excluded Asian-Americans :

There is no question that the Asian American community continues to struggle against potent and dehumanizing stereotypes in our society. It is precisely because racial discrimination persists in our society, however, that the use of race in college admissions to achieve racially diverse classes is critical to improving cross-racial understanding and breaking down racial stereotypes. See supra, at 16. Indeed, the record shows that some Asian American applicants are actually "advantaged by Harvard's use of race," Harvard II, 980 F. 3d, at 191, and "eliminating consideration of race would significantly disadvantage at least some Asian American applicants," Harvard I, 3974. Supp. 3d, at 194. Race-conscious holistic admissions that contextualize the racial identity of each individual allow Asian American applicants "who would be less likely to be admitted without a comprehensive understanding of their background"

She criticized the majority for its citing Brown vs Board of Education in its support by saying that the majority has misread the ratio of the judgment which was rendered in the context of racial segregation, which was dehumanizing the already marginalised groups.

"Brown recognized that passive race neutrality was inadequate to achieve the constitutional guarantee of racial equality in a Nation where the effects of segregation persist. In a societv where race continues to matter, there is no constitutional requirement that institutions attempting to remedy their legacies of racial exclusion must operate with a blindfold"

Country has never been colorblind 

Justice Jackson, the first black woman to be appointed as US SC Judge, pointed out that the country has never been colorblind.

 "Our country has never been colorblind. Given the lengthy history of state-sponsored race-based preferences in America, to say that anyone is now victimized if a college considers whether that legacy of discrimination has unequally advantaged its applicants fails to acknowledge the well-documented "intergenerational transmission of inequality" that still plagues our citizenry"

"With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces 'colourblindness for all' by legal fiat. But deeming race irrelevant in law does not make it so in life."

"And having so detached itself from this country's actual past and present experiences," she added, "the court has now been lured into interfering with the crucial work that [the University of North Carolina] and other institutions of higher learning are doing to solve America's real-world problems."

US President, Vice President disagree with the decisin

US President Joe Biden expressed his disagreement with the majority view.

"For decades, the Supreme Court recognized a college’s freedom to decide how to build a diverse student body and provide opportunity. Today, the Court walked away from precedent, effectively ending affirmative action in higher education. I strongly disagree with this decision", he tweeted.

"Today's Supreme Court decision is a denial of opportunity. It’s not about being colorblind. It’s about being blind to history, blind to empirical evidence about disparities, and blind to the strength that diversity brings to classrooms", tweeted Vice President Kamala Harris.

Click here to read the judgment