Members of the media stand outside the U.S. Supreme Court Building on June 29, 2023 in Washington, DC. In a 6-3 vote, Supreme Court Justices ruled that race-conscious admissions programs at Harvard and the University of North Carolina are unconstitutional, setting precedent for affirmative action in other universities and colleges.Anna Moneymaker/Getty Images
In its landmark decision Thursday forbidding the explicit consideration of race in university admissions, the United States Supreme Court has stepped into one of the most contentious areas of American life. But while the jurists expected to answer a vital question, they almost certainly posed new ones on the matter.
On the surface, the justices made it clear that affirmative action violates the Constitution’s “equal-protection” clause. But their rulings in two cases – one involving the University of North Carolina, the other involving Harvard – long awaited by critics of race-based factors and long dreaded by supporters of the practice, have not brought finality to the debate.
Instead, the justices have unleashed a flood of complications and difficult follow-up legal questions – a mirror of the phenomenon that followed the court’s Dobbs decision on abortion almost a year ago.
Left unresolved are these questions, sure to be the topic of spirited debate in higher-education decisions this week and beyond: Is it permissible, for example, for admissions officers to focus on geography, which would allow universities to boost diversity by emphasizing areas such as Harlem, the rural South and other regions where Black people comprise a large part of the local population? Is it possible to use variations on the sort of “top percentage plans” that schools such as the University of Texas employ, which permit institutions to select students within a certain range of their high-school grades, allowing underserved areas to send their graduates to top universities? Both practices are ways of achieving diversity without being labelled race-based admission.
“The takeaway is that universities are still, after this ruling, going to make extra efforts to be diverse,” said Daniel Urman, a constitutional scholar at Northeastern University. “There will be more litigation as a result of this because colleges are going to figure out ways around the official ban on using race. They’ll instead use proxies for race. The current college generation cares about diversity and wants to attend a diverse school.”
It matters, too, to higher-education officials, many of whom believe a diverse student body is a healthy student body.
“We are in the business of education and discovery, both of which are done in a deeper, more thoughtful way when you have people from diverse backgrounds and experiences challenging conventions, asking novel questions and pushing learning in new ways,” David Greene, the president of Colby College in Waterville, Me., said in an interview. “That is essential to the mission of what we do, and the evidence is overwhelming that diverse groups learn in deeper ways and they make more groundbreaking discoveries.”
Some university leaders said they were determined not to permit the high-court ruling to dilute their commitment to diversity on campus. “We will grow our diversity mission despite this ruling,” said Martin Meehan, the president of the University of Massachusetts.
Many educators believe they have a social obligation to educate a university population that looks more like the country at large.
“We should be creating educational opportunities for the America that is, not for the America that was,” said James Mullen, who was president of both a state university (University of North Carolina at Asheville) and a private institute (Allegheny College in Pennsylvania).
While the case involving the University of North Carolina was decided on a 6-3 vote, the one involving Harvard was decided on a 6-2 vote. Justice Ketanji Brown Jackson, a former Harvard board of overseers member and the newest member of the court, recused herself from the latter case.
The liberal bloc of justices Jackson, Elena Kagan and Sonia Sotomayor were the dissenters. The conservative bloc stuck together with the goal of eliminating race as a factor in university admissions.
Either way, the decision takes aim at one form of preferential admission but not all, and thus the justices likely have widened the debate about who gets admitted, why and how.
Their decision eliminates affirmative action based on race but leaves in place affirmative action based on legacy, donors and athletes. A 2019 National Bureau of Economic Research study found that more than two-fifths of white students accepted by Harvard were from families with Harvard ties or histories of large donations, children of faculty and staff and athletes. Though Harvard has not won a national football championship in more than a century, nor a national men’s hockey championship in more than 30 years, it still recruits athletes, as do dozens of universities considered athletic powerhouses. This decision could have an effect on collegiate athletics, a US$20-billion industry.
The principal targets of the lawsuit that prompted this decision were both private and public institutions. And though on the surface the ruling deals with Harvard (with its acceptance rate of 4 per cent) and the well-regarded University of North Carolina (ranked 29th, above private schools such as Tufts and Tulane and state powerhouses such as the University of Wisconsin), it will set in motion ripples that go far beyond college admissions.
“This is big,” said M. Lee Pelton, the head of the Boston Foundation and a former president of both Willamette University in Oregon and Emerson College in Massachusetts. “Not only will this impact college admissions, it will impact the future leaders of the nation. This country has to nurture leadership for minorities, and that is under threat with this ruling.’’
This decision comes at a time when the notion of reparations for slavery is part of the political debate. “The timing is not coincidental,” said Jon Michaels, a constitutional scholar at UCLA. “It is at a moment when so many predominantly white organizations are starting to make amends for their history – and now the court swoops in and battles efforts for more inclusivity.”