SCOTUS: Race cannot be considered in college admissions

State higher education institutions said they were “distressed” by what they called the U.S. Supreme Court’s “woefully misguided” decision on Thursday prohibiting the consideration of race in college admissions.

The court’s 6-3 decision will block institutions from dealing with “pervasive inequalities that continue to exist today,” based on race and ethnicity, the American Association of State Colleges and Universities said in a statement.

“Today’s decision will have negative consequences for all Americans and diminish our society’s economic and social development,” said Mildred García, the association’s president and former president of California State University, Fullerton, where affirmative action at public higher education institutions was barred in 1996. “We must not lose the important ground that has been gained. We must not revert to an inequitable society.”

The court’s majority backed a long-standing belief among conservatives that policies that benefit some races, even when it is intended to address continuing inequities, are prohibited by the equal protection clause of the Constitution’s 14th Amendment.

“Eliminating racial discrimination means eliminating all of it,” Chief Justice John Roberts wrote for the majority. 

The ruling will affect both public and private colleges and universities in states that have not already barred affirmative action in admissions. Nine states had banned affirmative action as of 2022, including California and Michigan, according to Axios.

But in those states, the ban will now also extend to private institutions like Stanford University in California, according to Luis Maldonado, the association’s vice president for government relations and policy analysis.

In a nuanced point that college admissions offices will have to figure out, the court left the door open a crack to consider the challenges people of color face. 

“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,” Roberts wrote.

An applicant, for instance, could describe in their college essay how they overcame racial discrimination, the opinion said, but they could only gain points for their “courage and determination. … Universities may not simply establish through application essays or other means the regime we hold unlawful today,” the opinion said.

Maldonado, however, says that will not be enough to make up for the fact that the ruling bars colleges and universities from considering discrimination based on race.

Justice Sonia Sotomayor in a 63-page dissent signed by justices Elena Kagan and Ketanji Brown Jackson called the distinction an attempt to “put lipstick on a pig.” She wrote that “because the Court cannot escape the inevitable truth that race matters in students’ lives, it announces a false promise to save face.”

The case was brought by a conservative group, Students for Fair Admissions, who challenged policies that consider race as one of several factors for admission at the University of North Carolina system and Harvard University.

Staffers at UNC, for instance, review every application and are required to consider an applicant's race before assigning a numerical rating for several categories and making a written recommendation to a committee. The committee is then allowed to consider race in accepting or rejecting the recommendation.

Harvard has a similar process. But the university also considers at stages the number of applicants who would be admitted based on race to make sure there is no drop-off in how many people of color are admitted compared to the previous year.

The court’s majority said that while the court could allow the consideration of race, goals like “training future leaders, acquiring new knowledge based on diverse outlooks, promoting a robust marketplace of ideas, and preparing engaged and productive citizens” are too vague to know when affirmative action policies should end.

“While these are commendable goals,” the ruling said, “they are not sufficiently coherent for purposes of strict scrutiny. It is unclear how courts are supposed to measure any of these goals, or if they could, to know when they have been reached so that racial preferences can end.”

The definitions of race being used are also overly broad, the court said, “expressing, for example, no concern whether South Asian or East Asian students are adequately represented as ‘Asian,’” and not creating a category for Middle Eastern students.

Universities argue “‘trust us,’” and that they are “owed deference when using race to benefit some applicants but not others,” the ruling said. But the court “has made clear that deference must exist within constitutionally prescribed limits.”

In addition, the court’s majority argued that “a benefit provided to some applicants but not to others necessarily advantages the former at the expense of the latter.”

The opinion, for instance, noted that fewer Asian-American students have been admitted to Harvard since the university began considering race in admissions.

However, Sotomayer and the court’s liberal minority lambasted the decision. The ruling is based on “the illusion that racial inequality was a problem of a different generation. Entrenched racial inequality remains a reality today,” she wrote, adding that, “What was true in the 1860s, and again in 1954, is true today.”

For example, Sotomayor noted that underrepresented minority groups are more likely to live in poverty and live in poorer areas. “When combined with residential segregation and school funding systems that rely heavily on local property taxes, this leads to racial minority students attending schools with fewer resources.”

“Students of color, particularly Black students, are more likely to be disciplined or suspended,” she continued, “interrupting their academic progress and increasing their risk of involvement with the criminal justice system. They are also less likely to attend preschool or early education programs or have parents who attended college. All of these interlocked factors place underrepresented minorities multiple steps behind the starting line in the race for college admissions.”

Sotomayer argued that the admissions policies at UNC and Harvard had worked. 

“This limited use of race has helped equalize educational opportunities for all students of every race and background and has improved racial diversity on college campuses,” she wrote. “Although progress has been slow and imperfect, race-conscious college admissions policies have advanced the Constitution’s guarantee of equality.” 

The ruling, she concluded, “rolls back decades of precedent and momentous progress.” 

Maldonado agreed. “There’s a quote,” he said. “Abilities may be evenly distributed but opportunities are not.”