SCOTUS axes affirmative action
Ruling against Harvard and UNC-Chapel Hill in two separate lawsuits, the Court decreed it unconstitutional for any American university to consider applicants’ races in admissions processes
Rachel Shin, Contributing Photographer
The Supreme Court declared race-conscious college admissions unconstitutional on Thursday, ruling 6-2 against Harvard University and 6-3 against the University of North Carolina at Chapel Hill in two separate lawsuits brought by the nonprofit organization Students for Fair Admissions.
At Yale, the admissions office can no longer constitutionally consider candidates’ races when making decisions on applications. If a student chooses to describe their experiences with race and racial identity, schools can only consider such information if it is “concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university,” according to the decision document.
The majority argued that achieving a society that is truly racially equal requires eliminating all forms of racial consideration. But in the dissenting opinions, one written by Sonia Sotomayor LAW ’79 and one by Ketanji Brown Jackson, the Court’s liberal justices challenged the legitimacy of colorblind frameworks.
“With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat,” the faction wrote. “But deeming race irrelevant in law does not make it so in life.”
During a 2019 trial in federal court, both Harvard and SFFA hired economists to simulate what the racial composition of Harvard’s undergraduate class of 2019 would have been without affirmative action. Both simulations estimated that a raceblind admissions model would have sunk the share of Hispanic students in the class by about 30 percent and cut that of Black students in half, the Harvard Crimson reported.
Similar trends could occur at a post-affirmative action Yale.
In the hours following the Court’s ruling, University President Peter Salovey expressed his “strong disagreement” with the Court ruling in a letter to the Yale community. He said the University intends to employ “all lawful means” to continue fostering diversity “in its many dimensions.”
“Beyond Yale…as a nation and global society, we are strengthened by a higher education system that admits and graduates into the workforce diverse and excellent cohorts of students,” Salovey wrote. “To the extent today’s decisions impede progress in this regard, I believe they have done the nation a disservice.”
Five of Yale’s organizing groups for students of color — the Asian American Students Alliance, the Native and Indigenous Student Association at Yale, the Black Student Alliance at Yale, Mecha de Yale and the Middle Eastern and North African Student Association — also decried the Court’s verdict.
Last October, AASA, NISAY, BSAY and Mecha sent a delegation of over 40 Yale students to the nation’s capital, where they protested Students for Fair Admissions’ anti-affirmative action advocacy on the day of the Supreme Court hearings for both lawsuits. The coalition shared a joint statement with the News in response to the decision, expressing their “strong and continued support for affirmative action” and urging Yale to continue fighting for racial equity.
In Thursday’s ruling, the Court found specifically that the universities’ use of affirmative action violated a legal principle called the strict scrutiny standard, which dictates that any sort of explicit race consideration can only stand if all other possible ways of achieving racial diversity have been exhausted. In concurring opinions, the Court wrote that legacy preference — which Harvard and UNC-Chapel Hill both employ, as does Yale — is antithetical to elevating racial diversity, making affirmative action as it currently stands unconstitutional.
The Court voted 6-2 in the Harvard case and 6-3 in the UNC case, with Chief Justice John Roberts delivering the majority opinion and Clarence Thomas LAW ’74, Samuel Alito LAW ’75, Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh ’87 LAW ’90 joining. Gorsuch filed a concurring opinion, which Thomas joined, as did Kavanaugh. Justice Sonia Sotomayor LAW ’79 filed a dissenting opinion, joined by Elena Kagan in the Harvard case and both Kagan and Ketanji Brown Jackson in the UNC case. Jackson recused herself from the Harvard case due to her prior role on the school’s board of overseers.
“Eliminating racial discrimination means eliminating all of it,” the majority wrote, arguing essentially that a colorblind admissions framework is necessary to achieve a racially equal society.
Students for Fair Admissions, led by longtime anti-affirmative action legal activist Edward Blum, filed two separate lawsuits against Harvard and UNC-Chapel Hill respectively in November 2014. The group argued that Harvard unlawfully discriminated against Asian American students in its admissions process and UNC-Chapel Hill against white and Asian American students.
In September of 2019, a district court upheld Harvard’s admissions policy, and in October of 2021, a district court also upheld UNC-Chapel Hill’s. Following a series of appeals — in which an appellate court also ruled in favor of Harvard’s admissions policy — SFFA, in 2021, filed a petition asking the Supreme Court to hear both cases. In their prior rulings in favor of the universities, lower courts cited Grutter v. Bollinger, a 2003 case in which the Supreme Court upheld race-conscious admissions practices.
Just after the Oct. 31 Supreme Court hearing, University spokesperson Karen Peart said the Court was being asked to “uphold 40 years of its own precedent” by ruling in favor of Harvard and UNC-Chapel Hill. The Court instead went in the opposite direction.
Earlier this year, Yale filed an amicus brief in support of Harvard and UNC-Chapel Hill alongside 14 peer institutions. A total of 82 corporations and business groups, including 25 Harvard student and alumni organizations, signed three amicus briefs asking the Court to uphold over 40 years of precedent by ruling again that it is legally permissible to consider race as one of many factors in university admissions.
Amid the affirmative action debate, controversies surrounding legacy admissions — in which universities afford preference to applications submitted by the children or grandchildren of alumni — have also intensified.
Despite more and more groups — including the Yale College Council — criticizing legacy preference models for advantaging predominantly white and wealthy students, universities like Yale and Harvard remain committed to the practice. Jeremiah Quinlan, Yale’s dean of undergraduate admissions and financial aid, testified before the Connecticut General Assembly in support of legacy admissions last February.
In its verdict and in the October hearing, the Court’s conservative faction raised the question of legacy admissions, challenging whether affirmative action can meet the “strict scrutiny” standard so long as legacy preference remains in place.
Under strict scrutiny, policies of any organization receiving government funding — which includes universities — must further a “necessary” state interest and must also minimize “differential treatment on the basis of race.” For Harvard and UNC-Chapel Hill to win their cases, they needed to prove that their admissions policies meet this standard.
“Suppose a university — a wealthy university — could eliminate those preferences which tend to favor the children of wealthy, white parents and achieve diversity without race consciousness: Would strict scrutiny require it to do so?” Justice Neil Gorsuch asked at one of the hearings.
Some legal scholars like Richard Sander said before the decision that had Harvard done away with its legacy preference model, the university could have won its affirmative action battle, the Harvard Crimson reported.
What does the decision mean for Yale?
Prior to Thursday’s ruling, eight states had already barred affirmative action: California since 1996, Florida since 1999, Michigan since 2006, Nebraska since 2008, Arizona since 2010, New Hampshire since 2012, Oklahoma since 2012 and Idaho since 2020. Texas imposed a similar ban from 1996 through 2003, as did Washington from 1998 until last year.
Over the approximate quarter-century since Californians voted to abolish affirmative action in their state universities, demographics reports show that Black, Latine and Indigenous student populations have declined. Similar trends followed in Michigan, where Black student enrollment dropped to just 4 percent on the University of Michigan’s Ann Arbor campus.
American Civil Liberties Union president Deborah Archer, who is also a law professor at New York University, said ahead of the ruling that a Court decision on SFFA’s side would prevent applicants from self-describing their racial background.
“This would require applicants to erase any trace of their race or ethnicity from their application for admissions,” Archer said in an interview with NYU News. “It would prevent an applicant of color from fully expressing their identity—and, in particular, those parts of their identity inextricably bound to their race.”
However, the decision document clarified that students can choose to discuss their own racial experiences. Universities can only consider such discussions, though, if concretely reflective of a candidate’s character or “unique” abilities.
After the ruling, Dean of Undergraduate Admissions and Financial Aid Jeremiah Quinlan and Yale College Dean Pericles Lewis sent a joint statement to the Yale College community committing to — despite their “concern” over the decision — comply with the law while still continuing efforts to “make Yale a leader in welcoming and educating students of all backgrounds.”
Quinlan and Lewis added that they intended to use the summer to consider new ways of building and supporting Yale’s diverse community. Among the deans’ listed priorities are expanding outreach to underresourced school districts, strengthening college preparation programs for low-income and rural students, investing in the University’s need-based financial aid program, supporting the four campus cultural centers and working with the Poorvu Center on Teaching and Learning to establish a new Office of Educational Opportunity.
Lewis and Quinlan’s letter echoes comments from the admissions office directly following the October hearing. At the time, office members told the News that though they would not make any assumptions about the lawsuits’ outcomes, they would — in a post-affirmative action world — continue taking steps to promote diversity.
“Earlier this year, the Admissions Office completed a review of the race-neutral initiatives we currently use to build a diverse student body,” Quinlan wrote in an October email to the News. “We will expand those initiatives, and we are working closely with the partners across campus to identify ways to obtain the benefits of diversity, even in a changed legal environment.”
Among these measures might be the new Small-Town And Rural Students College Network, a consortium of 16 schools including Yale, that was announced in April. Through this initiative, which is race-neutral, the University hopes to increase its outreach to and enrollment from small-town and rural communities, which are often underrepresented in selective higher education institutions.
In March, the admissions office extended its test-optional policy for one additional year, marking its fourth such cycle. The University told the News that it would make a long-term decision on testing requirements next winter, a one-year delay from its previous commitment to announce a long-term policy by the winter of 2023.
The University has not specified a relationship between its delay announcing a long-term testing policy and the looming context of affirmative action, but as Yale’s test-optional policy has been correlated with a more racially diverse applicant pool, a link between the delayed decision and the affirmative action ruling seems likely.
Members of the student body, too, intend to continue pushing for ways to promote racial diversity.
After the ruling, The Yale College Council worked with the University’s five largest organizing groups for students of color — the Asian American Students Alliance, the Native and Indigenous Student Association at Yale, the Black Student Alliance at Yale, Mecha de Yale and the Middle Eastern and North African Student Association — to write and send an open letter to Salovey, Quinlan and Lewis. The coalition urges the University to cease offering preference to legacy applicants and switch to a permanently test-optional admissions model.
The YCC also asked the University to work toward improving campus diversity and inclusivity outside of the admissions process. Specifically, the letter includes requests to increase funding for cultural houses and establish a new cultural center specifically for Middle Eastern and North African students.
“In the previous visit that Dean Lewis made to YCC, he spoke of the Admissions Office’s work to prepare and adjust for the event that affirmative action would be declared unconstitutional,” the Council wrote in the letter. “We commend and share in these sentiments, but words must be accompanied by action.”
When the Court heard arguments for both cases on Oct. 31, 41 Yalies joined student delegations from other universities — including Harvard and the UNC-Chapel Hill — on the Court steps to protest SFFA’s attempts to repeal race-conscious admissions. Over the past school year, members of Yale’s Asian American Students Alliance also organized a variety of on-campus initiatives related to affirmative action, including virtual and in-person campus seminars, an informational postering project on Cross Campus and teach-ins for New Haven middle and high school students.
For student organizer Resty Fufunan ’24, the core goal of these efforts was to promote awareness of the then-looming decision on affirmative action — and the potential consequences. Fufunan felt it particularly important to challenge the SFFA narrative that Asian Americans are hurt by and thus opposed to affirmative action.
“Regardless of what the Supreme Court decides, I think it’s important for us to show the community and people that come after us that we were there, we were fighting,” Resty Fufunan ’24, one of the student organizers of these actions, told the News in October. “Students for Fair Admissions does not go unopposed. There are Asian Americans and, more broadly, people of color that value affirmative action, that value diversity on campus.”
The group of Yalies that traveled to the Court in October was composed of 23 students from AASA and 18 from the Native and Indigenous Student Association at Yale, the Black Student Alliance at Yale and Movimiento Estudiantil Chicano de Aztlán de Yale, representing the largest cross-cultural undertaking among University student activists since the 2019 protests to bolster the Ethnicity, Race & Migration program.
Going forward, AASA, NISAY, BSAY and Mecha hope to strengthen the relationship between these four activist groups and brainstorm creative ways to continue promoting campus diversity.
“In keeping with the legacy of our groups’ historical partnership and commitments, we will continue to fight for racial equity,” the groups wrote in their joint statement. “We urge Yale University to do the same. We hope to meet with university leaders in the coming weeks to discuss solutions and efforts to support prospective students of color.”
The News previously reported that SFFA is funded in large part by conservative trusts, including organizations with financial ties to the Federalist Society, a network of primarily libertarian and conservative lawyers. The society was founded at the University in 1982 and is linked to six of the nine sitting SCOTUS justices.
Correction, June 29: A previous version of this story included an outdated name for Mecha de Yale. The piece has been updated accordingly.
Correction, June 29: A previous version of this story cited legal analysis prior to the ruling that said applicants would not be able to self-describe their racial identity. The article has been updated with specifics from the Court’s decision, which says that students can discuss experiences with race but that admissions officers can only consider these discussions if they are concretely indicative of an applicant’s character or ability.
Update, July 4: University President Peter Salovey issued a statement to the Yale community on June 29 following the ruling, as did Yale College Dean Pericles Lewis and Dean of Undergraduate Admissions and Financial Aid Jeremiah Quinlan to undergraduate affiliates. The article has been updated to include their sentiments.
Update, July 4: The Yale College Council sent in July an open letter to Salovey, Lewis and Quinlan as a response to the ruling. The article has been updated to include the YCC’s asks of the University.