How Affirmative Action Lost at the Supreme Court

Preferential college admissions violated the 14th Amendment's Equal Protection Clause.

The end of affirmative action in university admissions has been prophesied since 2003, when the Supreme Court issued its decision in Grutter v. Bollinger. In the majority opinion, Justice Sandra Day O'Connor wrote that "25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." That reckoning has now arrived, and five years earlier than predicted: In June, the Supreme Court ruled 6–3 that public universities must stop favoring certain applicants, and disfavoring others, based on their race or ethnicity.

"Eliminating racial discrimination means eliminating all of it," Chief Justice John Roberts declared, writing for the majority in Students for Fair Admissions v. President and Fellows of Harvard College. "In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race."

For everyone who values fairness, individuality, and nondiscrimination, this decision could not have come soon enough. The perniciousness of the admissions system was on full display, thanks to the details of the case. The plaintiff—an advocacy organization that filed suits against Harvard and the University of North Carolina at Chapel Hill (UNC)—persuasively demonstrated that race-based admissions schemes systematically disadvantaged Asian-American students. UNC, for instance, admitted more than 80 percent of its black applicants but less than 70 percent of its white and Asian applicants. (Reason Foundation, the nonprofit that publishes this magazine, submitted an amicus brief in support of the plaintiff.)

At Harvard, discriminatory practices were overt and began with recruitment. Admissions officials would send letters of interest to black and Hispanic high schoolers who received a score of 1100 or more on the SAT. Asian Americans were ignored unless they received at least a 1350. During the actual admissions process, students were sorted into "deciles"—10 levels of academic performance. Asian Americans in the top decile were less likely to get in than black students in the fourth decile.

The plaintiff also submitted evidence that Harvard admissions officers tended to give Asian Americans negative scores on the personality rating, a wholly subjective criterion. Favoritism also extended to white applicants from what Harvard describes as "sparse country": rural states with historically low enrollment numbers. The result was that applicants were judged not solely on the merits of their individual achievements but on immutable characteristics like their race and place of origin.

These schemes, according to the Supreme Court, violated federal law and, in UNC's case, the 14th Amendment's Equal Protection Clause. "Many universities have for too long wrongly concluded that the touchstone of an individual's identity is not challenges bested, skills built, or lessons learned, but the color of their skin," wrote Roberts. "This Nation's constitutional history does not tolerate that choice."

Title VI of the 1964 Civil Rights Act prohibits entities that receive federal funding from practicing racial discrimination. But affirmative action—a scheme to benefit racial minorities in hiring, contracting, and school admissions—was viewed as an exception; the idea was to practice discrimination on behalf of historically marginalized groups in order to make amends for past wrongs.

In 2003, a pair of Supreme Court rulings involving the University of Michigan—Gratz v. Bollinger and the aforementioned Grutter—upended that justification. In Gratz, the Court held 6–3 that Michigan's undergraduate admissions program went too far in its consideration of race. The university used a point system, with 100 points guaranteeing admission; belonging to an underrepresented minority group was worth 20 points, while a perfect SAT score was worth only 12 points.

In Grutter, however, the Court permitted Michigan's law school to consider race as one factor among many in admissions decisions, on the grounds that a racially diverse student body was a "compelling interest" of the state. While the decision preserved affirmative action in some form—for perhaps 25 years, per O'Connor's time limit—it forced higher education administrators to change their reasoning: Henceforth, they would have to defend race-based admissions as diversity enhancement programs.

Whether affirmative action actually promotes diversity is up for debate, of course. Schools that engage in racial gerrymandering may succeed in making their campuses more diverse in the most superficial sense without doing anything to improve intellectual, political, socioeconomic, or geographic diversity. No one in a position to defend Harvard's admissions system ever argued that the school needed more conservative or libertarian representation; in practice, the institution's position was simply that it needed fewer Asians.

At a time when the Supreme Court is often accused of being out of touch and counter-majoritarian, it's worth mentioning that Students for Fair Admissions undeniably reflects the will of the people. Race-based admissions systems are opposed by 69 percent of poll respondents, including 58 percent of Democrats, according to The New York Times. Voters in California, a deep-blue state, banned affirmative action twice—in 1996 and again, for good measure, in 2020. Faced with this reality, many defenders of affirmative action are trying to change the subject.

Rep. Alexandria Ocasio-Cortez (D–N.Y.), for instance, complained that the Supreme Court had ignored a more serious example of unfairness in higher education. "If SCOTUS was serious about their ludicrous 'colorblindness' claims," she wrote on Twitter, "they would have abolished legacy admissions, aka affirmative action for the privileged." Other progressive Democrats, such as Reps. Cori Bush (D–Mo.) and Jamaal Bowman (D–N.Y.), made similar observations.

It should go without saying, but the justices declined to adjudicate legacy admissions because this issue was not before them. That said, legislators do not need to wait for the Court; they can and should abolish the practice within public institutions. The widespread practice of granting preferential treatment to the scions of alumni is unfair and has no place at taxpayer-funded colleges and universities.

The fact that legacy admissions still exist is not a reason to maintain affirmative action; eliminating explicit racial discrimination is a noble goal in and of itself. But to any naysayers who disdain the Supreme Court's ruling because they think legacy admissions should face the same fate: Your terms are acceptable.