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3 Supreme Court Justices Dissent in Major Affirmative Action Ruling

The U.S. Supreme Court ruled Thursday that colleges and universities cannot take race into consideration when granting admission, striking down decades of precedent.

The case involved the admissions policy at the University of North Carolina at Chapel Hill, a public university, and Harvard University, a private Ivy League college. The court ruled 6–3, with Republican-appointed justices joining the majority, and Democrat-appointed justices joining the minority.

Justices Sonia Sotomayor wrote (pdf) a lengthy, 70-page dissent that was joined by Justices Elena Kagan and Ketanji Brown Jackson, arguing that Thursday’s ruling was tantamount to “entrenching racial inequality in education.”

“Today, this Court stands in the way and rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits,” Sotomayor wrote in her dissent. “In so holding, the 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.”

Sotomayor also claimed that “entrenched racial inequality remains a reality today,” without providing specifics.  “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.”

The decision Thursday resulted from two different cases brought by the Students for Fair Admissions, which targeted Harvard University and UNC. It had alleged that those two colleges discriminated against both white and Asian students.

Associate Justice Sonia Sotomayor sits during a group photograph of the Justices at the Supreme Court in Washington on April 23, 2021. (Erin Schaff/Pool/AFP via Getty Images)

Students for Fair Admissions alleged that the adoption by UNC, a public university, of an admissions policy that is not race neutral violates the guarantee to equal protection of the law under the Constitution’s 14th Amendment. The group contended Harvard, a private university violated Title VI of a landmark federal law called the Civil Rights Act of 1964, which bars discrimination based on race, color, or national origin under any program or activity receiving federal financial assistance.

Justices Sotomayor and Jackson criticized the majority for making an exception for military academies, with Sotomayor saying it is arbitrary.

Jackson also said that “the court has come to rest on the bottom-line conclusion that racial diversity in higher education is only worth potentially preserving insofar as it might be needed to prepare Black Americans and other underrepresented minorities for success in the bunker, not the boardroom (a particularly awkward place to land, in light of the history the majority opts to ignore).”

Majority Opinion

For the majority, Chief Justice John Roberts wrote: “The 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. 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,” Roberts continued, adding that the two colleges “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.”

“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,” he wrote.

Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett were part of the majority who struck down the university policy.

Many institutions of higher education, corporations, and military leaders have long backed affirmative action on campuses in alleging that it’s used to remedy so-called racial inequality. But critics have said that giving advantages to one race of people regardless of the motivation is unconstitutional and would lead to destructive outcomes.

Affirmative action had withstood Supreme Court scrutiny for decades, most recently in a 2016 ruling involving a white student, backed by affirmative activist Edward Blum, who sued the University of Texas after being rejected for admission. Blum, who has long opposed affirmative action, is the founder of Students for Fair Admissions.

The dispute presented the Supreme Court’s conservative majority an opportunity to overturn its prior rulings allowing race-conscious admissions policies. Lower courts rejected the group’s claims, prompting appeals to the U.S. Supreme Court asking the justices to overturn a key precedent holding that colleges could consider race as one factor in the admissions process because of the compelling interest of creating a diverse student body.

In a statement, the University of North Carolina at Chapel Hill said that the school “remains firmly committed to bringing together talented students with different perspectives and life experiences.” And it added, “While not the outcome we hoped for, we will carefully review the Supreme Court’s decision and take any steps necessary to comply.”

Reuters contributed to this report.

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