Affirmative Action Nixed in US Colleges: What Did The Divided Supreme Court Say?

While Chief Justice Roberts authored the majority opinion, Justices Sotomayor, Kagan, and Jackson dissented.

In a significant decision on Thursday, 29 June, the Supreme Court invalidated affirmative action programs used in admission decisions at Harvard University and the University of North Carolina.

(Photo: Altered by The Quint)

In a significant decision on Thursday, 29 June, the Supreme Court invalidated affirmative action programs used in admission decisions at Harvard University and the University of North Carolina.

Chief Justice John Roberts authored the majority opinion, which was supported by his five conservative colleagues: Justice Samuel Alito, Justice Clarence Thomas, Justice Amy Coney Barrett, Justice Brett Kavanaugh, and Justice Neil Gorsuch.

The three liberal justices on the bench, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, dissented in the case involving the University of North Carolina.

Notably, Ketanji Brown Jackson, who had previously served on Harvard University's Board of Overseers, recused herself from the Harvard University companion case.

However, the Supreme Court's move does not close the door to giving applicants more consideration if they are the victims of discrimination, hardships and bias. If universities diversify, they will now have to rely on a"race-neutral" policy which focuses on the individual experiences of students.

Here are the essential excerpts from each opinion in this highly anticipated ruling.

The Majority Opinion: Roberts, Thomas and Others Oppose Affirmative Action

Chief Justice John Roberts, in his majority opinion, meticulously examined various Supreme Court precedents and test cases to dismantle arguments supporting the preservation of affirmative action practices at Harvard and UNC.

Roberts emphasised the importance of treating students as individuals based on their own experiences rather than their race and wrote:

"The student must be treated based on his or her experiences as an individual, not on the basis of race."

He further criticised universities for perpetuating a flawed belief that a person's identity is determined by the colour of their skin, instead of focusing on challenges overcome, skills acquired, and lessons learned. He asserted that such a choice goes against our constitutional history.

Referring to the Equal Protection Clause, a provision within the Fourteenth Amendment, Roberts argued that racial discrimination must be entirely eliminated. He quoted, "Eliminating racial discrimination means eliminating all of it," and highlighted that the Equal Protection Clause applies universally, without regard to race, colour, or nationality.

A similar opinion was exuded by Justice Clarence Thomas, who agreed with Roberts, recounted his personal experiences and said that while he is aware of the "social and economic ravages which have befallen my race and all who suffer discrimination, I hold out enduring hope that this country will live up to its principles so clearly enunciated in the Declaration of Independence and the Constitution of the United States: that all men are created equal, are equal citizens, and must be treated equally before the law."

The most senior justice of the US Supreme Court, Thomas, has long contended that affirmative action in higher education hits out at the Fourteenth Amendment.

He insisted and said:

"All forms of discrimination based on race including so-called affirmative action are prohibited under the Constitution" and described his agreement as an "originalist defense of the colourblind Constitution."

“The great failure of this country was slavery and its progeny. And the tragic failure of this Court was its interpretation of the Reconstruction Amendments,” he wrote.

“We should not repeat this mistake merely because we think, as our predecessors thought, that our present arrangements are superior to the Constitution.”

The Dissent: Jackson, Sotomayor and Kagan Bat for Affirmative Action

Justice Sonya Sotomayor, the first Latina and woman of colour to serve on the court, strongly criticised the majority opinion, asserting that the decision lacked a foundation in law or fact.

In her written response, she expressed her belief that the Court's ruling obstructed decades of progress and disregarded the significance of race in a society plagued by systemic segregation.

Drawing upon the extensive history of the Court's decisions related to race in the nation, Sotomayor argued that the majority decision deviated from established precedents.

Sotomayor said:

"For over forty years, it has been firmly established as legal doctrine that the Fourteenth Amendment's Equal Protection Clause permits a limited consideration of race in college admissions, with the aim of fostering the educational benefits that arise from a diverse student body."

Additionally, she contended that the majority opinion was grounded in the fallacious notion that racial inequality belonged to a previous era.

"Persisting racial disparities continue to exist today," she emphasised, and said, "Disregarding race will not create equality in a society that remains racially unequal. What was true in the 1860s and reaffirmed in 1954 remains true today: Acknowledging inequality is essential for achieving equality."

Like Sotomayor, Justice Ketanji Brown Jackson maintained that neither the Constitution nor Title VI of the Civil Rights Act prohibits the consideration of race to ensure diversity in higher education admissions.

Jackson emphasised that the United States has never operated under a colourblind approach, and she later added that the root causes of enduring racial gaps should come as no surprise, as they can be traced back to historical inequities.

Jackson also presented various statistical data highlighting contemporary racial disparities in American society.

She concluded by arguing that the requirement for colleges to disregard the initial racial opportunity gap among applicants would inevitably widen the gap rather than narrow it, further delaying the achievement of equal opportunities for all Americans, regardless of race.

Jackson expressed her strong disapproval of the majority ruling, leaving no room for ambiguity in her statement.

She criticised the majority's decision by characterising it as a display of obliviousness, invoking the phrase "let-them-eat-cake," and asserted that declaring colourblindness in law does not eradicate its significance in everyday life.

She argued that race continues to have a significant impact on the experiences of all Americans, despite the absence of explicit racial barriers in legal frameworks. She believed that the ruling exacerbated the situation rather than improving it.

Jackson emphasised the existence of substantial racial disparities that have persisted over time, asserting that they have been inherited from the distant past and are still prevalent today.