The US supreme court has curbed universities’ ability to consider race in admissions, a ruling that could have far-reaching consequences for diversity policies at employers across the country.
The decision by the supreme court in two of the most high-profile cases heard this term marks a blow for affirmative action in the US. The cases against the University of North Carolina, a public university, and Harvard University, the private Ivy League institution, were brought by Students for Fair Admissions, a non-profit seeking to abolish racial considerations in admissions.
Students for Fair Admissions had argued the practice benefited black and Hispanic students to the detriment of Asian Americans and others. It asked the court to over-rule Grutter vs Bollinger, a 2003 supreme court decision that allowed universities to consider race in admissions by reaffirming that diversity is in the US government’s interest.
The ruling is a powerful endorsement of colourblindness that could transform public policymaking while giving critics a new pathway to pursue legal challenges against the consideration of race in business, government and education.
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The business community – which fears it could be the next target of similar challenges – had watched the cases closely. Dozens of large companies including American Airlines, General Electric, Meta, Google and Apple filed a brief in support of the colleges, arguing that barring universities from considering race in student admissions “would undermine businesses’ efforts to build diverse workforces”.
In the majority decision, the court’s six conservative justices held that affirmative action in the schools’ admissions programmes – which for decades have been a cornerstone of efforts to boost diversity in student bodies – violated the constitution’s equal protection clause. The three liberal justices dissented in the UNC case, although Ketanji Brown Jackson had recused herself from the Harvard case.
Students “must be treated based on his or her experiences as an individual – not on the basis of race”, chief justice John Roberts wrote in the majority ruling. “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 colour of their skin. Our constitutional history does not tolerate that choice.”
Nevertheless, “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”, Mr Roberts wrote.
In a concurring opinion, Clarence Thomas, who has argued that Grutter should be overruled, described affirmative action as a form of “discrimination based on race”.
“It appears increasingly in vogue to embrace an ‘antisubordination’ view of the Fourteenth Amendment: that the amendment forbids only laws that hurt, but not help, blacks,” added Mr Thomas, who is black.
Justice Sonia Sotomayor wrote in dissent that the court’s decision “stands in the way and rolls back decades of precedent and momentous progress”, and “cements a superficial rule of colourblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter”.
She added that the court “subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society”.
The universities had warned that barring colleges from considering race in their admission process would jeopardise the ability to build a diverse student body and urged the court to consider its “educational benefits”.
“With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colourblindness for all’ by legal fiat,” Ms Jackson, the supreme court’s newest justice and the first black woman to serve on the court, wrote in dissent.
“No one benefits from ignorance,” Ms Jackson added, describing the majority’s perspective as “ostrich-like”.
US president Joe Biden criticised the decision in a statement from the White House. “Today, the court once again walked away from decades of precedent. I strongly, strongly disagree with the decision.
“We cannot let this decision be the last word . . . it cannot change what America stands for,” he said.
The court’s decision dealt a “setback to colleges’ diversity programmes”, said Sonja Starr, professor at the University of Chicago Law School.
“It’s really only the beginning of the legal battles that are to come,” she added. “What’s at stake is actually an issue that goes well beyond education, covering the future of colourblindness doctrine.”
The decision was immediately celebrated by Republican presidential candidates, including ex-president Donald Trump, former vice-president Mike Pence and former UN ambassador Nikki Haley.
Ms Haley, who is Indian-American, said in a statement: “Picking winners and losers based on race is fundamentally wrong. This decision will help every student – no matter their background – have a better opportunity to achieve the American dream.”
Democrats decried the ruling. Chuck Schumer, the Senate’s top Democrat, said the justices had “put a giant roadblock in our country’s march towards racial justice”.
Kevin Guskiewicz, UNC’s chancellor, in a statement said the college remained “firmly committed” to building a diverse student body. Claudine Gay, Harvard’s president-elect, said the decision would “change how we pursue the educational benefits of diversity, but our commitment to that work remains steadfast”.
Edward Blum, founder of Students for Fair Admissions, said the decision marked “the beginning of the restoration of the colourblind legal covenant that binds together our multiracial, multi-ethnic nation”. – Copyright The Financial Times Limited 2023