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  • Writer's pictureRobert Lusk

Supreme Court Strikes Down Race-Conscious College Admissions Policies

The Supreme Court first countenanced race-conscious college admissions policies 45 years ago in Regents of Univ. of Cal. V. Bakke. In Bakke, the Court held that such policies were permissible for the sole and limited purpose of increasing racial diversity on college campuses, provided the preferences were not quotas and did not discriminate against other races and ethnic groups. Twenty years ago, the Court affirmed Bakke in Grutter v. Bollinger, adding the caveat that the constitutionally questionable practice of considering race for any reason would end within 25 years. Twenty years later, with no end to race-conscious preferences in sight, the Supreme Court struck them down completely in Students For Fair Admissions, Inc. v. President and Fellows of Harvard College, Case No. 20-1199, and Students For Fair Admissions, Inc. v. University of North Carolina, Case No. 21-707 (June 29, 2023).

The SFFA cases were challenges to the race-conscious admissions policies of two highly selective colleges, Harvard and the University of North Carolina (UNC). SFFA argued these policies violated the 14th Amendment’s Equal Protection Clause and Title VI of the Civil Rights Act of 1964. The Court’s opinion noted that both Harvard and UNC admittedly considered and used race in admissions decisions for the ostensible purpose of increasing the racial diversity of their entering classes and, further, concluded that doing so violated the Equal Protection Clause and Title VI. The Court, in passing, noted its decision did not preclude colleges from considering how an applicant might have overcome or been inspired by racial prejudice or any other form of mistreatment. However, the Court emphasized it would not permit colleges to “simply establish through application essays or other means the [admissions] regime we hold unlawful today.”

Will the Court extend its reasoning to affirmative action in employment? Justice Gorsuch, in addition to joining the Court’s opinion, wrote a concurrence emphasizing the fact that the conclusion race-conscious admissions policies violated Title VI was based on the exact same statutory language and legal reasoning the Court had used to hold that discrimination based on sexual orientation violated Title VII. Bostick v. Clayton County. Thus, implicitly rebuking the SFAA minority (Justices Sotomayor, Kagan, and Jackson) for their inconsistency in supporting Bostick but dissenting in these cases.

Readers are encouraged to read the Court’s entire decision, including concurrences and dissents, Regardless of one’s political or legal perspective, it is fascinating to see how the various Justices addressed our nation’s checkered past and well its many attempts to address that past. Readers may also perceive hints about how the Court may address future race-related legal issues, such as reparations.


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