- The Supreme Court today issued a major decision, saying that affirmative action and the use of race as a factor in college admissions at public and private universities is unconstitutional.
- The two cases, centered on Harvard University and the University of North Carolina Chapel Hill, were brought forward by Edward Blum's conservative nonprofit organization, Students For Fair Admissions.
- Those in support of affirmative action said prior to the ruling that a ruling lessening or eliminating race altogether as a factor in admissions will send ripples across higher education.
The decision to strike down race-conscious admissions at Harvard University and the University of North Carolina (UNC) divided the Supreme Court, but according to polls, ending affirmative action has near majority support from Americans regardless of political affiliation.
The cases Students for Fair Admissions v. University of North Carolina and Students for Fair Admissions v. Harvard College were brought forward by Students for Fair Admissions (SFFA), a conservative group that wants schools nationwide to immediately stop using race or ethnicity to boost higher education applications. On Thursday, the Supreme Court voted 6-3 that race-based admissions violated the equal protection clause, essentially ruling that affirmative action is unconstitutional.
While the opinion offered sharp rebukes of conservative justices on social media, polls seem to indicate general support for ending affirmative action.
A poll from the New York Times, showed surprisingly sharp consensus among the three political voting blocs. As it pertains to private colleges and universities, 78 percent of Republicans, 72 percent of independents and 58 percent of Democrats opposed affirmative action.
Opinions became more fervent when it comes to public colleges and universities, opposed by 88 percent of Republicans, 75 percent of independents and 60 percent of Democrats.
SCOTUSpoll, an annual national survey of Americans' attitudes on the major Supreme Court, also found that an average of 69 percent and 74 percent of Americans opposed race being taken into consideration when admitting students into private and public colleges and universities, respectively.
A poll of 1,500 adults conducted by The Economist/YouGov between June 17-20 found slightly lower support among Democrats for ending affirmative action. Forty-eight percent of Democrats supported ending affirmative action, compared to 66 percent of independents and 81 percent of Republicans.
A Pew Research Center survey conducted in March 2022 found that respondents took more stock in high school grades, standardized test scores, community service involvement, first-in-family college students and even athletic ability over race or ethnicity.
SFFA argued that Harvard and UNC discriminated against white and Asian American applicants while favoring Black and Latino students.
Chief Justice John Roberts wrote in the opinion issued Thursday that the universities' policies violate the Equal Protection Clause.
"With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces 'colorblindness for all' by legal fiat," liberal Justice Ketanji Brown Jackson wrote in the dissent. "But deeming race irrelevant in law does not make it so in life. And having so detached itself from this country's actual past and present experiences, the Court has now been lured into interfering with the crucial work that UNC and other institutions of higher learning are doing to solve America's real-world problems."
Previous Supreme Court decisions said that there could be no quotas for students of certain backgrounds and that other factors, like test scores and extracurricular activities, needed to be considered. The practice is already banned in nine states: Arizona, California, Florida, Idaho, Michigan, Nebraska, New Hampshire, Oklahoma and Washington.
Americans of all political leanings opposed affirmative action, or public and private colleges and universities using race as a factor for admissions.
'Restoration of the colorblind legal covenant'
SFFA, a nonprofit membership group of more than 20,000 students and parents, was started by Edward Blum—a conservative who has gone after affirmative action at different universities across the U.S.
He was previously known for recruiting white student Abigail Fisher to sue the University of Texas at Austin after she was denied admission in 2008. The case was litigated in federal courts for years before the Supreme Court ruled against Fisher in a 4-3 verdict in 2016, according to the Texas Tribune.
A former stockbroker who lives on the coast of Maine overlooking Penobscot Bay, according to The Boston Globe, Blum has also focused on eradicating race-based initiatives in other parts of American life, including employment diversity programs, corporate board diversity quotas and government contracting requirements.
Blum declined to comment to Newsweek on Wednesday, instead saying he would remark on the Supreme Court decision in its aftermath. After the decision on Thursday, he said in a statement:
"The opinion issued today by the United States Supreme Court marks the beginning of the restoration of the colorblind legal covenant that binds together our multi-racial, multi-ethnic nation," Blum said in a statement following the decision. "The polarizing, stigmatizing and unfair jurisprudence that allowed colleges and universities to use a student's race and ethnicity as a factor to admit or reject them has been overruled. These discriminatory admission practices undermined the integrity of our country's civil rights laws.
"Ending racial preferences in college admissions is an outcome that the vast majority of all races and ethnicities will celebrate. A university doesn't have real diversity when it simply assembles students who look different but come from similar backgrounds and act, talk, and think alike."
Newsweek reached out to Blum for further comment.
"Edward Blum is a wealthy white businessman," Uma Jayakumar, associate professor of higher education at the University of California, Riverside, told Newsweek on Wednesday. "He was a conservative activist on many issues including affirmative action, and he's on a mission to end it. Even his recruitment of Asian American students and white women—he specifically recruits people to raise this issue."
'Censoring life experiences'
Jayakumar was an expert witness in the SFFA v. UNC case, representing the student of color intervenors at UNC in the federal district court in North Carolina. Her testimony, in which she invoked the lingering legacy of segregation and its impacts on on-campus students, helped the university prevail at the district court level.
When the UNC case was appealed by SFFA to the Supreme Court, she became a lead organizer and co-author of an amicus brief in support of race-conscious admissions at UNC that was signed by 1,246 social scientists.
"Affirmative action is looking at race as one of many factors in a holistic review process that is similar to looking at if someone plays a musical instrument, or someone talks about some sort of experience that they've had that shaped their life," she said. "So, it's not being looked at the way SAT or GPA [grade-point average], where it's making a determining factor...Now, it's censoring someone's life experiences in a certain way.
"Allowing for the consideration of race in admissions allows for students of color to be their whole selves in the admissions process, and when they're not allowed to, it also signals that they're not welcome to bring their whole selves to the admissions process."
She said data has alluded to students who advocate for affirmative action and have in the past felt isolated due to pervasive experiences either being a "token" minority in a classroom or just generally feeling racially isolated.
After California banned race-conscious admissions in 1996, underrepresented minority enrollment dropped by 50 percent or more at the University of California's most selective campuses and has not kept pace with the state's demographic shifts.
In 1995, 29 percent of the University of California, Los Angeles' (UCLA) enrolled freshmen were underrepresented minority students, compared to 38 percent of public high school graduates. In 2021, 33 percent of freshmen were underrepresented minorities; however, 58 percent of California public high school graduates are underrepresented minorities.
Jayakumar is reminded of the words of former Supreme Court Justice Sandra Day O'Connor: "In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity."
Justice Ketanji Brown Jackson—who recused herself from the Harvard case due to her status at the time as a member of the Harvard College Board of Overseers—provided strong oral arguments in the SFFA v. UNC case, Jayakumar said. Jackson essentially stated that if race isn't considered between a Black student and a white student, only the experiences of white students would be considered.
"When race isn't included, white students' experiences continue to be considered but Black students' experiences and legacies are not equally considered or are censored," Jayakumar said.
A warning for all institutions
The University of Michigan has seen a drastic effect on its student body's diversity since statewide voters passed a law in 2006 that banned affirmative action in the state's public universities.
It has led to a decrease in the percentage of Black students at the university, from 7 percent to 4 percent, and a 90 percent drop in Native American students, according to the Michigan Daily.
Evan Caminker, a constitutional law professor at the university, told Newsweek via phone prior to the Supreme Court's decision that he suspected to see the same effects at colleges and universities nationwide as he's seen firsthand at the University of Michigan.
"It's been 16 years of significant investment and effort to use race-neutral alternatives to enhance the diversity of the student population," he said. "The university still finds itself not having recovered from the end of affirmative action...I don't see any reason why that wouldn't occur similarly with both Harvard and UNC and pretty much every private and public school that's selective in its admissions."
There are no good and effective risk-neutral alternatives for highly selective universities to get racial diversity without significantly crowding out other merit-based factors that everybody cares about, he added.
Caminker used an example of a school putting a lot of emphasis on low-income students. It would only lead to a finite amount of racial diversity, he said, due to more white people inhabiting society across all income levels than minorities.
"And that's true in the student applicant pool as well," he said. "So, even if you say we're going to target students at the lower levels of socioeconomic status, that doesn't mean you're getting a lot of racial minorities; you're still getting a lot of white students along with racial minorities.
"There just aren't any really good ways without being able to take race directly into account as one factor among many to really target racial diversity. The other problem is that a lot of the race-neutral alternative crowd out focus on other merit factors that we all care about, like leadership skills, hard work and dedication, or work experience."
Whereas states like Texas have focused on high school GPA and students being rewarded for being in the top 10 percent, Caminker argues that it neglects the importance of test scores, essay quality, and other factors that go into education.
"You end up in a situation where you can't use race and you have to use proxies, there aren't great proxies and they minimize the university's ability to focus on important merit-based factors."
Pointing at the Harvard case, he said everyone who is rejected may actually believe they were rejected due to affirmative action—even if affirmative action actually only accounts for a very small percentage of the spaces in the class.
"Harvard may reject 25,000 people, and maybe affirmative action helps 500 people," he said. "So, really, only 500 people are disadvantaged, but all 25,000 people who don't get in think, 'Oh, that could have been me.'"
Caminker relates it to the hypothetical scenario of one parking space being open and 100 drivers fighting over it, only for the space to be reserved for special vehicles and not the general public.
"The reality is, only one car would be parked there and the other 99 would still be circling," he said. "You get 100 people who complained; only one person really has grounds for complaint."
Update 06/29/23, 10:34 a.m. ET: This article was updated with additional information and a statement from Edward Blum.
