The Supreme Court recently determined that affirmative action is unlawful under the Constitution. What does that mean?
Affirmative action entails the conscious inclusion of historically discriminated groups based on their ethnicity or race. In universities, affirmative action includes race-conscious admissions practices that consider a student’s race as a factor in the admissions process. These policies often accompany the view that structural barriers have denied underrepresented students access to higher education.
According to Reuters, on June 29, 2023, the Supreme Court made a decision regarding affirmative action based on two cases involving the group Students for Fair Admissions against Harvard University and the University of North Carolina (UNC). One case argued that Harvard’s admissions policy discriminates against Asian American applicants. The other argued that UNC’s policy discriminates against both white and Asian American applicants.
Based on these cases, the Supreme Court ruled in favor of Students for Fair Admissions and declared that affirmative action is now unlawful under the Constitution. The Court determined this on a vote of 6-3 and 6-2 on both cases, with Justice Ketanji Brown Jackson recusing herself in the Harvard case.
Although affirmative action policies in admissions are unlawful, CNN states that the Supreme Court’s majority claims students can still mention race in college admissions essays in describing how their heritage or culture connects to a character attribute or unique ability. The Court minority, however, believes the ruling will make it practically impossible for colleges to take race into account for admissions. It is important to note that the minority who ruled against Students for Fair Admissions are also Democratic-appointed judges, suggesting that party opinions factored into the decision.
The decision’s impact will vary school by school, based on location and the kind of higher education afforded. For example, US military service academies are still allowed to continue to take race into account for admissions. Those states that still take race into account will likely pursue other formats of promoting diversity on college campuses, such as in diversity statements or admissions essays. Therefore, while affirmative action is unlawful, there remain ways to improve diversity in higher education nationwide.
Sources:
Ax, Joseph, and Clifford Chance. “What the Supreme Court's ruling on affirmative action means for colleges.” Reuters, 29 June 2023, https://www.reuters.com/legal/what-supreme-courts-ruling-affirmative-action-means-colleges-2023-06-29/. Accessed 29 July 2023.
Blackburn, Hudspeth. “What the Supreme Court's ruling on affirmative action does and does not do.” CNN, 29 June 2023, https://www.cnn.com/2023/06/29/politics/what-affirmative-action-ruling-does-scotus/index.html. Accessed 29 July 2023.
Victor, Daniel. “What Is Affirmative Action? What Is the Equal Protection Clause?” The New York Times, 29 June 2023, https://www.nytimes.com/2023/06/29/us/politics/affirmative-action-equal-protection-clause.html. Accessed 29 July 2023.
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