June 29, 2023 Supreme Court affirmative action decision

The Supreme Court says colleges and universities can no longer take race into consideration as a specific basis for granting admission, a landmark decision overturning long-standing precedent that has benefited Black and Latino students in higher education.

Chief Justice John Roberts wrote the opinion for the conservative majority, saying the Harvard and University of North Carolina admissions programs violated the Equal Protection Clause because they failed to offer “measurable” objectives to justify the use of race.

He said the programs involve racial stereotyping and had no specific endpoint.

The opinion claims the court was not expressly overturning prior cases authorizing race-based affirmative action, and suggested that how race has affected an applicant’s life can still be part of how their application is considered. 

Here's what else you should know:

• Who dissented: Justice Sonia Sotomayor, joined by Justice Elena Kagan and Ketanji Brown Jackson, issued a fiery dissent, saying the opinion “rolls back decades of precedent and momentous progress.” In a demonstration of the controversial nature of the case, justices read their dissents from the bench for the first time since 2019.
• Exemptions to the decision: The ruling says that US military service academies can continue to take race into consideration as a factor in admissions. During oral arguments, Solicitor General Elizabeth Prelogar stressed the unique interests of the military and argued that race-based admissions programs further the nation’s compelling interest of diversity.
• Reactions: GOP officials celebrated the decision as Democrats blasted the court. House Speaker Kevin McCarthy said the justices “just ruled that no American should be denied educational opportunities because of race.” And Republican Sen. Ted Cruz, who sits on the Senate Judiciary Committee, said in a statement, “This is a great day for all Americans.” Former President Donald Trump called Thursday a “great day for America.” Meanwhile, Senate Majority Leader Chuck Schumer called the ruling “a giant roadblock in our country’s march toward racial justice.”
• Implications: CNN Chief Legal Analyst Laura Coates said the decision will lead to sweeping changes to education in the US. And Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law, said the decision will still not end the legal fight over college admissions.

The Supreme Court’s landmark decision to bar colleges and universities from considering race as a specific basis for admission will make it more difficult for schools to achieve a diverse student population, civil rights leaders and education advocates say.

The gutting of affirmative action upends a long-standing precedent that has benefited disadvantaged Black and Latino students in higher education.

The practice has been in place since the 1960s as a tool to prevent discrimination at selective institutions, many of which historically only admitted White students.

Now universities across the country seeking diversity will be charged with finding other ways to reach Black and Latino students. The task, researchers and education officials say, will not be easy.

Wisdom Cole, national director of the NAACP Youth & College Division, called the rollback of affirmative action a “dark day in America.”

“Affirmative action has been a beacon of hope for generations of Black students,” Cole said in a statement Thursday. “It stood as a powerful force against the insidious poison of racism and sexism, aiming to level the playing field and provide a fair shot at a high-quality education for all. Students across the country are wide-awake to the clear and present danger encroaching on their classrooms.”

The Supreme Court case was sparked by conservative activist Edward Blum, who filed lawsuits in 2014 against Harvard University and the University of North Carolina-Chapel Hill challenging their use of race-conscious admissions. Blum and other critics of affirmative action have said college admissions should be based on equal standards and merit.

Chief Justice John Roberts wrote the opinion on affirmative action for the conservative majority, saying the Harvard and University of North Carolina admissions programs violated the Equal Protection Clause of the 14th Amendment because they failed to offer “measurable” objectives to justify the use of race. He said the programs involve racial stereotyping and had no specific endpoint.

The playing field is "not leveled": Civil rights leaders and experts say the Supreme Court ruling is a setback for equality in education.

Racial diversity at colleges and universities – particularly at competitive and Ivy League schools – may suffer, they say. A study by the Georgetown University Center on Education and the Workforce found that colleges and universities are less likely to meet or exceed their current levels of racial diversity in the absence of race-conscious admissions. They are also less likely to reflect the racial makeup of the population graduating from the nation’s high schools.

Zack Mabel, a researcher for Georgetown’s Center for Education and the Workforce, said he expects the number of Black and brown students attending selective colleges nationwide will drop from the current 20% to about 16% without affirmative action in place. Mabel said race-neutral practices have not driven the diversity many colleges hoped for and some students are simply not applying.

Read more here.

In the majority opinion on the affirmative action cases, Chief Justice John Roberts never goes as far as saying that he is explicitly overruling decades-old precedent.  

That could be because, during the Supreme Court’s last term, the justices faced harsh criticism when they reversed Roe v. Wade.  

Roberts may have been seeking a way to avoid criticism that for the second year in a row, on an issue that will change how Americans live their lives, the newly constituted court dominated by conservatives has taken another step to wipe away long-established precedent.  

In dissent, the liberals make clear that the new opinion “rolls back precedent,” including Grutter v. Bollinger that was decided in 2003. That landmark decision upheld affirmative action in admissions. 

Even conservative Justice Clarence Thomas, writing a separate concurrence, said that the majority “rightly makes clear that Grutter is, for all intents and purposes, overruled.”  

Here's how the justices ruled:

Members of Congress continue to react to the news that the Supreme Court has gutted affirmative action at the college level, with Republicans praising the decision and Democrats lamenting it.

GOP Sen. Mitch McConnell: “Today’s rulings make clear that colleges may not continue discriminating against bright and ambitious students based on the color of their skin.”

GOP Rep. Virginia Foxx, who chairs the House Committee on Education and the Workforce, called the decision, “a welcome victory for countless students across the country.”

“Academia’s ivory towers should not divide and promote preferences based on the color of one’s skin. In America, fairness is the key to educational opportunity, where one’s success is judged by merit rather than arbitrary quotas,” she added. 

GOP Sen. Ted Cruz, who sits on the Senate Judiciary Committee, said Thursday was a "great day for all Americans," in a statement.

“Today, the Supreme Court upheld the 14th Amendment rights of Asian-Americans and ruled that Harvard and the University of North Carolina’s explicit and egregious policies of racially discriminating against Asian-Americans and other students are unconstitutional,” he said.

Democratic Sen. Peter Welch, meanwhile, lamented the decision, telling CNN’s Manu Raju it is a “great disappointment.”

“This is a real blow to affirmative action. And it's another indication of the Supreme Court with an extraordinarily conservative orientation. But the impetus for diversification is very powerful and I don't think will be entirely stopped because the Supreme Court has invalidated its use in an explicit way.”

Democratic House Minority Leader Rep. Hakeem Jeffries slammed "right-wing ideologues" on the the Supreme Court for overturning Roe. v. Wade last year, and this year, now going after affirmative action.

"The very same extremists just obliterated consideration of racial diversity in college admissions. They clearly want to turn back the clock. We will NEVER let that happen," Jeffries said.

The Congressional Black Caucus said: “By delivering a decision on affirmative action so radical as to deny young people seeking an education equal opportunity in our education system, the Supreme Court has thrown into question its own legitimacy.”

Democratic Rep. Alexandria Ocasio-Cortez said: "If SCOTUS was serious about their ludicrous 'colorblindness' claims, they would have abolished legacy admissions, aka affirmative action for the privileged. 70% of Harvard’s legacy applicants are White. SCOTUS didn’t touch that - which would have impacted them and their patrons."

The Congressional Hispanic Caucus: “Today’s ruling by the Supreme Court dismantles more than 40 years of precedent to increase representation for marginalized groups in university and college campuses, erasing decades of progress,” Rep. Nanette Barragán, who chairs the caucus, said in a statement.

The Congressional Asian Pacific American Caucus said in a tweet that today's affirmative action decision "deals a needless blow to America’s promise of equal and fair opportunity. It should not be viewed as a win for the Asian American Native Hawaiian and Pacific Islander community."

Some context: Asian Americans have taken a central role in the debate over affirmative action in higher education, with opponents arguing the policies favor Black and Latino students over students of Asian descent, and hold Asian Americans to a higher standard for admission. 

CNN's Morgan Rimmer and the Hill Team contributed reporting to this post.

The Supreme Court’s landmark ruling Thursday on affirmative action pitted its two Black justices against each other, with the ideologically opposed jurists employing unusually sharp language attacking each other by name.

The majority opinion authored by Chief Justice John Roberts said colleges and universities can no longer take race into consideration as a specific basis for granting admission. Justice Clarence Thomas and the court’s other four conservatives joined Roberts’ opinion.

Thomas, who in 1991 became the second Black person to ascend to the nation’s highest court, issued a lengthy concurrence that attacked such admissions programs and tore into arguments posited by liberal Justice Ketanji Brown Jackson, the first Black woman to join the court, who penned her own fiery dissent in the case.

Thomas spoke in personal terms as he laid out an argument against the use of the policies, which he described as “rudderless, race-based preferences designed to ensure a particular racial mix in their entering classes.”

As he read his concurrence from the bench on Thursday, Jackson, who joined the court last year, stared blankly ahead. Though Justice Sonia Sotomayor read her dissent from the bench, Jackson did not read her own dissent, in which she went after Thomas’ concurrence and accused the majority of having a “let-them-eat-cake obliviousness” in how the ruling announced “‘colorblindness for all’ by legal fiat.”

A footnote near the end of Jackson’s dissent went after the concurrence by Thomas, with the liberal justice accusing her colleague of demonstrating “an obsession with race consciousness that far outstrips my or UNC’s holistic understanding that race can be a factor that affects applicants’ unique life experiences.”

“Justice Thomas ignites too many more straw men to list, or fully extinguish, here,” Jackson wrote. “The takeaway is that those who demand that no one think about race (a classic pink-elephant paradox) refuse to see, much less solve for, the elephant in the room – the race-linked disparities that continue to impede achievement of our great Nation’s full potential.”

In her broader dissent, Jackson said that the argument made by the challengers that affirmative action programs are unfair “blinks both history and reality in ways too numerous to count.”

You can read more here.

The Supreme Court is yet to release a ruling on another crucial education-related case. Millions of borrowers will soon learn whether they could receive up to $20,000 in debt relief under President Joe Biden’s student loan forgiveness program.

The fate of the unprecedented debt cancellation program lies with the Supreme Court, which is expected to decide by the end of this term to either uphold or strike down the proposal.

The student loan forgiveness program, which Biden announced last August, has been on hold due to legal challenges. No student loan debt has been canceled, despite the fact that the government approved 16 million applications eligible for relief last year.

A group of Republican-led states and other conservative groups took the Biden administration to court over the program, claiming that the executive branch does not have the power to so broadly cancel student debt in the proposed manner.

Critics also point out that the one-time student loan forgiveness program does nothing to address the cost of college for future students and could even lead to an increase in tuition. Some Democrats joined Republicans in voting for a bill to block the program. Both the Senate and the House passed the measure, but Biden vetoed the bill in early June.

The forgiveness program, which is estimated to cost about $400 billion, would fulfill Biden’s campaign promise to cancel some student loan debt and would delight progressives, as well as put some borrowers in a better financial position when the pause on payments and interest accrual expires later this year.

Most federal student loans have been frozen since March 2020 when a pause meant to protect borrowers struggling financially due to the Covid-19 pandemic went into place. Payments will be due starting in October no matter how the Supreme Court rules on the one-time forgiveness program.

Who would be eligible for student loan forgiveness? The Biden administration has estimated that more than 40 million federal student loan borrowers would qualify for some level of debt cancellation, with roughly 20 million who would have their balance forgiven entirely, if the forgiveness program is allowed to move forward.

But not everyone with a federally held student loan would qualify. Individual borrowers who made less than $125,000 in either 2020 or 2021 and married couples or heads of households who made less than $250,000 a year could see up to $10,000 of their federal student loan debt forgiven. If a qualifying borrower also received a federal Pell grant while enrolled in college, the individual could be eligible for up to $20,000 of debt forgiveness.

Federal student loans that are guaranteed by the government but held by private lenders are not eligible unless the borrower applied to consolidate those loans into a Direct Loan by September 29, 2022.

Read more about Biden's student loan program here.

Vice President Kamala Harris slammed the Supreme Court's gutting of affirmative action as "a step backward for our nation," arguing that the ruling will make college campuses less diverse and impact the country for decades.

"Today’s Supreme Court decision in Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina is a step backward for our nation," Harris said in a statement Thursday. "It rolls back long-established precedent and will make it more difficult for students from underrepresented backgrounds to have access to opportunities that will help them fulfill their full potential." 

"In the wake of this decision, we must work with ever more urgency to make sure that all of our young people have an opportunity to thrive," Harris continued. 

Harris reaffirmed the importance of diversity on college campuses, arguing that "it is well established that all students benefit when classrooms and campuses reflect the incredible diversity of our Nation."

"By making our schools less diverse, this ruling will harm the educational experience for all students," Harris said.

Earlier Thursday, the Biden administration outlined a series of steps it will take through the Department of Education and other relevant agencies to support diversity in higher education.

The Biden administration has vowed to take "swift action" to support diversity in higher education in the face of the Supreme Court's ruling gutting affirmative action, laying out a series of steps it will take through the Department of Education and other relevant agencies.

Here's a look at the steps, according to an administration news release:

• Providing colleges and universities with clarity on what practices and programs are still lawful: The Department of Education and Department of Justice will provide resources to colleges and universities addressing lawful admissions practices within the next 45 days.
• The Department of Education will host a national summit on equal opportunity: It will feature leaders from a variety of relevant groups to help develop additional resources for colleges and students to expand access to educational opportunity.
• Releasing a report on strategies for increasing diversity and educational opportunity: After the summit, the Department of Education will produce a report by September, highlighting "promising admissions practices to build inclusive, diverse student bodies," which will include ways to still take an applicant's adversity into account.
• Increasing transparency in college admissions and enrollment practices: The Department of Education will consider ways to collect and publish more information on application and enrollment trends, including relevant findings on race and ethnicity and other measures potentially impacted by Thursday's decision.
• Helping states analyze data to increase access for underserved communities: The Department of Education will help state and Tribal leaders use data to improve their practices to develop strategies for increasing access to educational opportunity.

Secretary of Education Miguel Cardona vowed his department would find ways to mitigate the ruling.

"Today’s Supreme Court decision takes our country decades backward, sharply limiting a vital tool that colleges have used to create vibrant, diverse campus communities," Cardona said in a statement.

"As we consider today’s decision, our commitment to educational opportunity for all Americans is unshaken, and our efforts to promote diversity in higher education are undeterred. The Department of Education is a civil rights agency, committed to equal access and educational opportunity for all students,” he added.

Challengers in the affirmative action case targeted Harvard and the University of North Carolina, arguing that their programs violate equal protection principles, dashed the promise of a colorblind society and discriminated against Asian Americans. They asked the court to overturn precedent and insist that higher education should explore and further develop race-neutral alternatives to achieve diversity. 

A conservative group, Students for Fair Admissions was behind both challenges.

SSFA argued the UNC and Harvard policies violated Title VI of the 1964 Civil Rights Act that prohibits schools receiving federal funds from discriminating based on race as well. The lawyers also argued that the UNC violated the 14th Amendment’s guarantee of equal protection under the law, which covers state universities. 

Lower US courts had ruled in favor of the schools, finding that that the programs used race in a sufficiently limited way to fulfill a compelling interest in diversity. 

After an eight-day trial in 2020, District Court Judge Loretta C. Biggs of the US District Court for the Middle District of North Carolina ruled in favor of the school, making special mention of its history steeped in racism. 

“The University continues to face challenges admitting and enrolling underrepresented minorities particularly African American males, Hispanics, and Native Americans,” Biggs said, adding that in 2013 enrollment of Black men in the first-year class fell below 100 students. 

The Supreme Court stepped in to consider the case before it was heard by a federal appeals court. 

Harvard’s program is like that of University of North Carolina, but the challenge focused particularly on the treatment of Asian American students and a charge that the school intentionally discriminates against them by setting higher standards for their admission. While Harvard is a private university, it is still subject to Title VI because it receives public funds. 

Its freshman class in 2019 had 1,600 students out of 35,000 applicants. Of the 35,000, 2,700 had perfect verbal SAT scores, 3,400 had perfect math SAT scores and more than 8,000 had perfect grade point averages. After a 15-day bench trial that featured thirty witnesses the district court ruled in favor of Harvard, finding that the school did not discriminate against Asian Americans in violation of Title VI.

The 1st US Circuit Court of Appeals affirmed the district court holding that it did “not clearly err in finding that Harvard did not intentionally discriminate against Asian Americans. ”

Keep reading here.