Supreme Court Strikes Down Affirmative Action—A Blow to Equality and Democracy

Ishika Vyas, 18, a student at Harvard University, chants at a rally outside the Supreme Court on Oct. 31, 2022, in support of keeping affirmative action policies. (The Washington Post / Getty Images)

Colleges and universities can no longer take race into consideration as a basis for granting admission, the Supreme Court ruled Thursday, upending decades of its own precedents that have benefited Black, Latino and Indigenous students seeking higher education.

The schools at the heart of the decisions were Harvard and the University of North Carolina. The ruling in the UNC case was 6-3 along ideological lines; in the Harvard case, it was 6-2, with Justice Ketanji Brown Jackson recusing. In the majority opinion, the six conservative justices concluded that the 14th Amendment—which was enacted to address discrimination faced by Black Americans after slavery—must be interpreted in a colorblind fashion. 

While the Court did not formally end race-based affirmative action, the ruling will make it almost impossible for colleges and universities to take race into account for admissions decisions—a point Justice Sonia Sotomayor, joined by Justices Jackson and Elena Kagan, made clear in a scathing dissent. The majority opinion “rolls back decades of precedent and momentous progress,” they wrote.

In her own separate dissent, Jackson—the only Black woman on the Court—accused the majority of having “detached itself from this country’s actual past and present experiences,” with a “let-them-eat-cake obliviousness.”

“Gulf-sized race-based gaps exist with respect to the health, wealth and well-being of American citizens. They were created in the distant past, but have indisputably passed down to the present day through the generations. Every moment these gaps persist is a moment in which this great country falls short of actualizing one if its traditional principles—the ‘self-evident’ truth that all of us are created equal,” she wrote. “Deeming race irrelevant in law does not make it so in life. No one benefits from ignorance.”

The long-awaited decision was met with instant rebuke from legal observers and civil rights advocates.

“Today’s decisions from the Supreme Court on affirmative action represent a significant setback for civil rights in the U.S. and are a cornerstone of the conservative movement’s coordinated effort to roll back access to opportunity for systemically marginalized Americans,” tweeted Kimberlé Crenshaw, executive director of the African American Policy Forum and a leading scholar of critical race theory. “Affirmative action—like learning Black history or reading Black texts—is not punitive against white Americans. It is an essential tool in the work to live in the multiracial democracy we deserve.”

“Since Brown v. Board of Education, the nation has committed itself to using our system of education to remediate past discrimination and to promote integration,” said Rakim H.D. Brooks, president of Alliance for Justice. “For the first time, the Court tells us that our quest was not only unconstitutional but immoral—and does so in the name of Brown. … How dare Justice Roberts use the very laws passed to protect against segregation in a way that will surely maintain it.”

Gulf-sized race-based gaps exist with respect to the health, wealth and well-being of American citizens. … Deeming race irrelevant in law does not make it so in life. No one benefits from ignorance.

Justice Ketanji Brown Jackson

The number of Black students at top colleges and universities will likely drop to the enrollment levels of the 1960s. An amicus brief filed by highly selective liberal arts schools—including Amherst College, Smith College and Wesleyan University—predicted “the percentage of Black students matriculating would drop from roughly 7.1 percent of the student body to 2.1 percent.”

Among those most affected by the ruling will be women students of color, who face both racism and sexism when it comes to higher education decisions. Currently, women of color dramatically outnumber their male counterparts in colleges and universities, and carry more student loan debt post-graduation.

College and university leaders also say the decision flies in the face of best practice. “There’s no other alternative method that will racially diversify a student body, other than the use of race as one factor of consideration,” said University of Texas professor Stella Flores.

The decision’s ripple effects will be felt not only in education decisions. “It’s going to open a Pandora’s box across the country and across institutions and industries,” Harvard co-counsel Bill Lee told NPR last fall.

“My heart breaks for any young person out there who’s wondering what their future holds—and what kinds of chances will be open to them,” tweeted former first lady Michelle Obama. “Today is a reminder that we’ve got to do the work not just to enact policies that reflect our values of equity and fairness, but to truly make those values real in all our schools, workplaces and neighborhoods.”

In her dissent, Sotomayor also issued a warning to her colleagues and challenged the nation to keep up the fight: “Despite the Court’s unjustified exercise of power, the opinion today will serve only to highlight the Court’s own impotence in the face of an America whose cries for equality resound.”

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Roxanne Szal (or Roxy) is the managing digital editor at Ms. and a producer on the Ms. podcast On the Issues With Michele Goodwin. She is also a mentor editor for The OpEd Project. Before becoming a journalist, she was a Texas public school English teacher. She is based in Austin, Texas. Find her on Twitter @roxyszal.