Highlights of the Affirmative Action Opinions and Dissents

The Supreme Court on Thursday struck down race-conscious admissions policies for most colleges and universities across the country in a pair of cases challenging affirmative action at Harvard and the University of North Carolina.

In a sign of the complexity and politically charged nature of the issue, the majority opinion, written by Chief Justice John G. Roberts Jr., was accompanied by three concurring opinions and two dissenting ones. The vote was 6 to 3.

Here are some excerpts:

In his opinion, Chief Justice Roberts said giving Black and Latino applicants an edge over white and Asian applicants in the name of diversity violated the equal protection clause of the Constitution’s 14th Amendment.

Chief Justice John Roberts

The Harvard and U.N.C. admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. Both programs 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. We have never permitted admissions programs to work in that way, and we will not do so today.

However, his opinion exempted military academies from the ruling, citing “the potentially distinct interests” they present. Admissions committees at colleges, he added, could consider race so long as it was limited to the specific context of personal essays:

Nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration or otherwise. But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today.

In his concurring opinion, Justice Clarence Thomas reiterated his longstanding view that affirmative action hurts some of the people it is intended to help, including by stigmatizing students who would have been admitted regardless of race. He also argued that the Constitution requires “colorblind” government policies:

Justice Clarence Thomas

The solution to our Nation’s racial problems thus cannot come from policies grounded in affirmative action or some other conception of equity. Racialism simply cannot be undone by different or more racialism. Instead, the solution announced in the second founding is incorporated in our Constitution: that we are all equal, and should be treated equally before the law without regard to our race. Only that promise can allow us to look past our differing skin colors and identities and see each other for what we truly are: individuals with unique thoughts, perspectives, and goals, but with equal dignity and equal rights under the law.

In a dissenting opinion, Justice Sonia Sotomayor argued that the Supreme Court had turned its back on 45 years of jurisprudence aimed at promoting more inclusive and equal schools:

Justice Sonia Sotomayor

Today, this Court stands in the way and rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits. In so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter. The Court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society.

In dueling footnotes, Chief Justice Roberts, in his majority opinion, and Justice Ketanji Brown Jackson, in a dissent, argued over what statistics show about the effect of admissions policies that consider race as a factor. The chief justice cited statistics compiled by the plaintiff, Students for Fair Admissions:

Chief Justice John Roberts

According to SFFA’s expert, over 80% of all black applicants in the top academic decile were admitted to UNC, while under 70% of white and Asian applicants in that decile were admitted. In the second highest academic decile, the disparity is even starker: 83% of black applicants were admitted, while 58% of white applicants and 47% of Asian applicants were admitted. And in the third highest decile, 77% of black applicants were admitted, compared to 48% of white applicants and 34% of Asian applicants.

In her own footnote, Justice Jackson criticized the majority for using “back-of-the-envelope calculations” based on the plaintiff’s own measure of what counts as academic excellence.

Justice Ketanji Brown Jackson

Even when the majority’s ad hoc statistical analysis is taken at face value, it hardly supports what the majority wishes to intimate: that Black students are being admitted based on UNC’s myopic focus on “race—and race alone.” As the District Court observed, if these Black students “were largely defined in the admissions process by their race, one would expect to find that every” such student “demonstrating academic excellence . . . would be admitted.”

Justices Sotomayor and Jackson also criticized the majority for making an exception for military academies. The rationale, according to the majority, was that the military needed to maintain affirmative action in training its officer corps because the leadership cadre should reflect the diversity of the rank-and-file troops who do the bulk of fighting and dying in wars. Justice Sotomayor called it arbitrary to focus on the military, while Justice Jackson was more scathing:

Justice Ketanji Brown Jackson

The Court has come to rest on the bottom-line conclusion that racial diversity in higher education is only worth potentially preserving insofar as it might be needed to prepare Black Americans and other underrepresented minorities for success in the bunker, not the boardroom (a particularly awkward place to land, in light of the history the majority opts to ignore). It would be deeply unfortunate if the Equal Protection Clause actually demanded this perverse, a historical, and counterproductive outcome. To impose this result in that Clause’s name when it requires no such thing, and to thereby obstruct our collective progress toward the full realization of the Clause’s promise, is truly a tragedy for us all.

Chief Justice Roberts criticized the dissenting views on various grounds, but said the worst was that upholding affirmative action required courts to pick which race to favor:

Chief Justice John Roberts

Most troubling of all is what the dissent must make these omissions to defend: a judiciary that picks winners and losers based on the color of their skin. While the dissent would certainly not permit university programs that discriminated against black and Latino applicants, it is perfectly willing to let the programs here continue. In its view, this Court is supposed to tell state actors when they have picked the right races to benefit.

While declaring that the “majority’s vision of race neutrality will entrench racial segregation in higher education because racial inequality will persist so long as it is ignore” and lamenting that “the devastating impact of this decision cannot be overstated,” Justice Sotomayor also ended on a defiant note for supporters of diversity:

Justice Sonia Sotomayor

Notwithstanding this Court’s actions, however, society’s progress toward equality cannot be permanently halted. Diversity is now a fundamental American value, housed in our varied and multicultural American community that only continues to grow. The pursuit of racial diversity will go on. Although the Court has stripped out almost all uses of race in college admissions, universities can and should continue to use all available tools to meet society’s needs for diversity in education. 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.

Charlie Savage is a Washington-based national security and legal policy correspondent. A recipient of the Pulitzer Prize, he previously worked at The Boston Globe and The Miami Herald. His most recent book is “Power Wars: The Relentless Rise of Presidential Authority and Secrecy.” @charlie_savage • Facebook

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