Supreme Court Bans Affirmative Action: California’s Private Universities Must Stop Using Race in Admissions

In landmark ruling, Supreme Court throws out decades of precedent on race-based college admissions.

PUBLISHED JUL 1, 2023 11:01 A.M.
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Six of the nine Supreme Court justices, all appointed by Republican presidents, have voted to end affirmative action.

Six of the nine Supreme Court justices, all appointed by Republican presidents, have voted to end affirmative action.   Fred Schilling, Collection of the Supreme Court of the United States / Wikimedia Commons   Public Domain

Hours after Thursday’s Supreme Court decision that effectively ended affirmative action—that is, the use of race as one criteria in college admissions—Gov. Gavin Newsom predicted the country would see “a significant decline in African-American and Latino admissions in institutions of higher learning.” Why would he say that? Because in California, where affirmative action has been banned since 1996, that’s exactly what happened

While the SCOTUS justices were still considering the two challenges to affirmative action that were ultimately decided on June 29, the 10 chancellors of schools in the University of California system submitted an amicus brief to the high court in which they said that despite putting in place “numerous and wide-ranging race-neutral measures designed to increase diversity of all sorts, including racial diversity” since the 1996 passage of Proposition 209—the measure ending affirmative action at public universities in the state—the UC system “struggles to enroll a student body that is sufficiently racially diverse to attain the educational benefits of diversity.”

The number of “freshmen enrollees from underrepresented minority groups” was cut in half, or worse,  at UC’s “most selective campuses,” the chancellors said in their SCOTUS brief. 

Will the situation get even worse now? What did the Supreme Court, in an opinion authored by Chief Justice John Roberts, actually say?

What Did SCOTUS Do This Time?

The Supreme Court issued a combined ruling in two cases, one brought against Harvard University, the other against the University of North Carolina. In both cases the plaintiff was the same—a right-wing activist group called Students for Fair Admissions. The court voted 6-3 to uphold the activist  group’s case against UNC, and 6-2 in the Harvard case because Justice Ketanji Brown Jackson recused herself because she previously sat on Harvard’s Board of Overseers.

In both cases, however, the court split along party lines, with the six justices who were appointed by Republican presidents voting to get rid of the use of race as a factor in college admissions, and the justices appointed by Democratic presidents voting to keep it in place.

In the 1978 Bakke decision, the court held that using racial quotas—for example, reserving a predetermined number of places in every incoming class for Black students—was unconstitutional, under the Equal Protection Clause of the 14th Amendment. But in that same landmark ruling, and in later rulings, the court also held that universities may still take race into account as one factor in a “holistic” way of deciding who gets into a school and who doesn’t. Race could only be considered as a “plus” in the admissions process. It could not be a factor working against an applicant.

Using race as a factor in admissions was allowed, under previous court rulings, only when it served a “compelling interest.” It may not serve a “compensatory interest.” In other words, the court held in Bakke, race-based admssions cannot be used to help correct societal wrongs such as past racial discrimination or the long-lasting effets of slavery, and SCOTUS affirmed that view in subsequent rulings.

In fact, the Court has ruled in earlier cases, race-based programs must be “narrowly tailored” to serve the “compelling interest” in question. In Bakke, Justice Lewis Powell alone identified campus diversity as just such a compelling interest. But in later decisions, a majority of the court agreed.

The new Supreme Court ruling, tosses out that reasoning, and with it nearky five decades of precedents. Diversity is not a compelling interest and the affirmative action policies of Harvard and UNC were not “narrowly tailored,” according to the ruling. The opinion authored by Chief Justice John Roberts, states that the Harvard and UNC admissions policies “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, those admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause.”  

Who Gets Hurt?

The ruling is likely to have a significant effect on only a small number of schools. Of nearly 4,000 colleges and universities in the United States, approximately 200 have highly selective admissions, meaning that they admit less than half of all applicants. Also, for reasons that remain rather murky, the court exempted military academies from their ruling, stating only that the military has “distinct interests.”

But Roberts’ opinion did not mandate that schools ignore race entirely. 

“Nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life,” Roberts wrote,  “so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university.”

So minority students are now responsible for using their college application essay to explain how racism has affected them, a provision that lawyer and commentator Elie Mystal—who is African-American and himself a Harvard and Harvard Law School grad—called “a ludicrous example of burden-shifting to expect an 18-year-old kid to have to do the heavy lift of explaining how racism works and affected them personally, in this racist ass society.”

Hasn’t California Already Banned Affirmative Action?

Public universities have been barred from using race as a criteria in admissions since the 1996 passage of Proposition 209, and an effort to repeal that law, Prop 16, failed in 2020, with 57 percent of voters casting ballots in support of keeping the affirmative action ban in place. Following the Supreme Court ruling June 29, however, even if California did repeal Prop 209, state schools would still be prohibited from giving weight to an applicant’s race.

But the decision is even further-reaching than that. While Prop 209 applied only to public educational institutions (and also to hiring by public agencies), the Supreme Court ruled that private instititutions must abide by the affirmative action ban, if they accept any funding from the government. That’s because, according to Roberts’ opinion, affirmative action not only violates the Equal Protection Clause, it also violates Title VI of the 1964 Civil Rights Act which prohibits racial or ethnic discrimination “under any program or activity receiving Federal financial assistance.”

That means prestigious private institutions such as Stanford University in Palo Alto and the University of Southern California in Los Angeles must now remove race from their admissions process, unless applicants choose to write about it in their essays, apparently.

Prop 209 “deterred” more than 1,000 minority students per year from even bothering to apply to a UC school—even though “most of them would still have been admitted to many UC campuses,” according to a 2020 study done by researchers at UC Berkeley. Another UC study that same year found that in the first three years Prop 209 was in effect, minority enrollment across the 10 UC campuses dropped by 12 percent. At UC Berkeley and UCLA, it plunged by 50 percent, the study found.

While time will tell whether private universities will now see a similar shrinkage of minority enrollment, leading to overall whiter campus populations, it seems reasonable to assume that they will indeed experience dropoffs similar to those in the UC system.

Officials at private universities said that they will continue to look for other ways to create diversity on their campuses. Ivy League schools stopped using achievement test scores such as the SAT test in 2020 with the onset of the COVID-19 pandemic and Columbia Univerity in 2023 became the first Ivy League university to renounce SAT scores permanently. There has long been a consistent racial disparity in SAT scores, and many researchers believe that the tests are biased against minority students.

In 2021, the UC Regents—facing a lawsuit over the tests—voted to eliminate the SAT and the similar ACT test as an admission requirement. But whether the elimination has done much to increase campus diversity is not clear so far.

Rev. Paul Fittzgerald, president of the Cathlolic church-affiliated University of San Francisco, hinted to the San Francisco Chronicle that his school may refuse to comply with the affirmative action ban on religious liberty grounds.

“We embrace DEI (diversity, equity and inclusion) as an expression of our Catholic identity,” Fitzgerald told the paper. “It would impinge upon our religious freedom for the government to stop us from admitting the students we want to admit.”

Ultimately, however, when it comes to building diverse campuses, there is simply no substitute for race-based decisions, experts say.

“What we've learned in that process is that there's nothing that you can do that is as effective as directly considering race in admissions,” USC Higher Education Professor Julie Posselt told the news site LAist.

Officials and Stanford and the Massachusetts Institute of Technology filed a joint brief with the Supreme Court, in which they also stated blunty that affirmative action is the only viable solution to the problem of decreasing diversity.

“No race-neutral alternative exists which is a workable means of achieving (our) goals of fostering diversity,” the school’s officials wrote.

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