Lawrence Hurley, NBC News, June 29, 2023
The Supreme Court on Thursday struck down affirmative action programs at the University of North Carolina and Harvard in a major victory for conservative activists that is likely to end the systematic consideration of race in the admissions process.
The court ruled that both programs violate the Equal Protection Clause of the Constitution and are therefore unlawful. The vote was 6-3 in the UNC case and 6-2 in the Harvard case, in which liberal Justice Ketanji Brown Jackson was recused.
In the majority opinion, Chief Justice John Roberts did not explicitly say that the former precedents were overruled, but in a concurring opinion conservative Justice Clarence Thomas, only the second Black justice to serve on the court, said that the Grutter case was “for all intents and purposes, overruled.”
Roberts wrote that both 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.”
Jackson, the first Black woman to serve on the court, wrote in a dissenting opinion that the ruling was “truly a tragedy for us all.”
Justice Sonia Sotomayor, another liberal and the first Hispanic justice, wrote that the court “stands in the way and rolls back decades of precedent and momentous progress.”
The court’s decision is a major blow to the most selective universities that say some consideration of race is vital in ensuring they have diverse student bodies.
Roberts left open the possibility of colleges considering discussion of race in an individual student’s application, citing the example of someone who personally encountered racial discrimination.
The student “must be treated based on his or her experiences as an individual — not on the basis of race,” he added.
The ruling is likely to have repercussions far beyond higher education, including on K-12 schools, and puts increased pressure on colleges to come up with workable race neutral programs that would foster racial diversity. The decision could also lead to future challenges to racial diversity programs used by employers as similar arguments could be made under Title VII of the Civil Rights Act, which prohibits discrimination in employment.