The Demise of Affirmative Action: The Consequences of an Anti-Precedent Supreme Court

In 1954, the Supreme Court unanimously ruled that separate cannot be equal in Brown v. Board of Education of Topeka, thus commencing a nearly century-long mission of advancing equitable education in the United States. [1] This past June, the Supreme Court turned its back on its legacy by ruling affirmative action policies unconstitutional in Students for Fair Admissions, Inc v. Presidents and Fellows of Harvard College and Students for Fair Admissions, Inc v. University of North Carolina. Having emerged in the tail-end of the Civil Rights Movement, affirmative action policies were developed to rectify the consequences of historical discrimination against people of color by enabling employers and schools to consider race favorably among applicants. Although affirmative action has existed since the 1800s, it took its current form through an Executive Order by President John F. Kennedy in 1961 (Order 10925) in an effort to promote equal opportunity in employment. Universities soon began voluntarily applying affirmative action policies to their admissions during and after the Civil Rights Movement. [2] Since then, affirmative action has served as a bedrock of equality initiatives and has proven itself to be an unparalleled tool to achieving diversity.

Students for Fair Admissions (SFFA) is a nonprofit organization formed by activist Edward Blum, representing college and university applicants, prospective applicants, and their families, with the mission of eliminating affirmative action. [3] SFFA sued both the University of North Carolina and Harvard College separately, on the grounds that their affirmative action policies violated Title VI of the Civil Rights Act of 1964 and the 14th Amendment, which states that no state of the United States can deny any person “equal protection of the laws.” [4] Both suits made their way to the Supreme Court’s docket, resulting in 6-3 and 6-2 votes, respectively, which overturned the long-standing policy of affirmative action. Justice Ketanji Brown Jackson recused herself in the Harvard case due to her previous membership on the university’s board. The Court’s majority decision was delivered by Chief Justice John G. Roberts Jr. alongside three concurring opinions, while Justice Jackson and Justice Sonia Sotomayor penned dissenting opinions. [5] Ultimately, the Supreme Court’s dismissal of four decades of precedent and its outright denial of systemic inequality will only serve to perpetuate the very injustices they seek to remedy. This cumbersome application of circumstance-blind equality conflicts with the premise by which the 14th Amendment’s Equal Protection Clause was crafted, ratified, and upheld in the nearly two centuries since.

Affirmative action policies have been backed by several previous landmark Supreme Court cases, but the status of these policies have long been precarious. Regents of the University of California v. Bakke (1978) was the first case challenging affirmative action that resulted in formal opinions from the Supreme Court, following a per curiam decision in DeFunis v. Odegaard (1974), that declared the central legal question regarding affirmative action to have become moot. [6] In Bakke, the Court produced a plurality opinion that affirmed race-conscious admissions as constitutionally permissible but eliminated use of racial quotas. [7] This ruling also established “racially diverse education environments” as a valid state interest. Consequently, this led to diversity becoming a primary objective of affirmative action, as opposed to the original goal of correcting historical inequities.

Twenty-five years later, the Court’s decision in Grutter v. Bollinger (2003) further cemented that diversity was a critical state interest and affirmed the right of universities to enact affirmative action policies in their admission systems. This opinion had the agreement of five justices and its significance was understood beyond educational settings. Rather, the majority opinion, penned by Justice Sandra Day O'Connor, established that diversity in universities was important for enriching campuses and the post-graduate workforce to contribute to the organizational performance of businesses and other institutions. Furthermore, Justice O’Connor suggested that there would come a time where these policies would have completed their intended goals and stated that “race-conscious admissions policies must be limited in time”–thus allowing affirmative action policies to exist but defining them as a temporary measure. Justice O'Connor estimated that 25 years from then, 2028, would possibly be sufficient time for affirmative action to achieve its purpose, but this premise was not a binding one. [8]

In 2013 and 2016, the Supreme Court decided Fisher v. University of Texas (I) and Fisher v. University of Texas (II), ruling respectively that affirmative action stands under strict scrutiny and effectively addresses the compelling state interest of educational diversity. [9] Interestingly, the Court also noted that there are no other available or workable alternatives to the policy. In short, affirmative action has withstood several challenges for nearly fifty years. Despite this, the precedent for race-conscious admissions is strong and is also replicated beyond educational spaces. Since the 1960s, affirmative action has played a significant role in rebalancing the opportunities of marginalized people, particularly black people, and have demonstrated their effectiveness in promoting diversity. Still, these policies have not eliminated educational inequality. The Center for American Progress has found that beyond admissions, significant racial discrepancies exist between college completers, including dropout rates, types of institutions attended, and pursued fields of study. [10] Thus, it is clear that we not only still need affirmative action policies today but that further efforts to increase the accessibility of education are also necessary.

However, the current Supreme Court has rejected this reality and overturned its longstanding precedent in the majority opinion of SFFA v. Harvard penned by Chief Justice Roberts. In an inversion of the objects of Brown v. Board, Roberts claimed that schools were required to admit students “on a racially nondiscriminatory basis” in order to be in “full compliance” with Brown.

Furthermore, he argues that affirmative action policies are not “narrowly tailored” as established in Fisher I as their impacts cannot be limited to a particular group of students but rather have the potential to impact an entire applicant pool. Regarding Grutter, he argues that the compelling state interest of promoting diversity, as defined in that case, does not withstand strict scrutiny because the benefits of a diverse campus are ambiguous and unable to be measured by the Court. Chief Justice Roberts also acknowledges the time limit that Justice Powell foresaw. While he does not treat the time limit as binding, he does state that the affirmative action programs at Harvard College and the University of North Carolina do not have a “logical endpoint.” [11] Rather than striking down these schools’ policies on that front, he and the Court’s majority refute the very premises of affirmative action and explicitly overturn well-established precedent.

In a concurring opinion, Justice Clarence Thomas cites Justice John Marshall Harlan’s dissenting opinion in Plessy v. Ferguson (1896), in which he writes, “[our] Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Justice Thomas advocates for an originalist interpretation of the 14th amendment and emphasizes that lack of mention of race reinforces the idea that race is not “known” by the Constitution. He further establishes that the implication that the experiences of applicants of different races are inherently different from one another is not true and racist in and of itself, and the discrimination that existed in the 1960s, when affirmative actions policies were first introduced, no longer exists today. [12]

In the dissenting opinion, which Justice Jackson and Justice Elena Kagan joined, Justice Sotomayor directly addresses these claims. Unlike Justice Thomas, Justice Sotomayor acknowledges the entrenched, systemic discrimination that affirmative action seeks to remedy. [13] This discrimination has its roots in American chattel slavery, which was abolished in 1865 through the 13th Amendment, or one of the post-Reconstruction amendments that included the 14th. However, the legacy of slavery has carried on in many forms. The Civil Rights Movement took on segregation, perhaps the most egregious and explicit remnants of slavery, and ultimately produced the affirmative action policies we know today as a restorative tool. Segregation was outlawed in the Civil Rights Act of 1964, following Brown’s assertion that separate cannot be equal–a mere 59 years ago. [14] Thus, the effects of segregation, and the other remnants of long-standing American slavery, cannot reasonably be believed to have been eradicated in such a short period of time. While Justice Thomas guilessly rejects the reality of persisting racial discrimination today, his rejection only serves to burden the project of equality by leaving its trustees without the proper tools to correct systemic injustices against Americans of color.

In her dissenting opinion, Justice Sotomayor challenges the majority’s grounds to overturn precedent and criticizes Justice Thomas’ instance on relying on originalist interpretations of the 14th Amendment and the Constitution, noting that this very document once protected slavery in the first place. Following the Civil War, literacy quickly emerged as a leading “instrument of resistance and liberation.” Therefore, access to education has long been a significant tool in counteracting the legacy of slavery and discrimination. Justice Sotomayor, too, cites Justice Harlan’s dissenting opinion in Plessy v. Ferguson, in which he states that the aims of the 14th Amendment are to specifically grant recently freed Black Americans “all the civil rights.” While Justice Thomas interpreted the Equal Protection Clause’s lack of mention of race as evidence of the amendment's colorblindness, Justice Sotomayor argues that this was actually intended to the very opposite. [15] In fact, an earlier draft of the amendment that explicitly prohibited distinction on the basis of race or color was rejected by Congress. Moreover, the 14th Amendment ushered in a slew of race-conscious laws upon its passage, such as the Freedmen's Bureau Acts of 1865 and 1866. [16] And so, the ultimate goal of the 14th Amendment was not to achieve a “superficial rule of colorblindness,” but racial equality of opportunity.

While Brown v. Board certainly sought to eliminate racial discrimination in education, the issue was also certainly not so one-dimensional. More accurately, the aims of Brown were to “dismantle ‘well-entrenched dual systems’ and transition to a unitary, nonracial system of public education.” As such, one could not reasonably hope to achieve this goal through passive elimination of racial classifications in light of the clear persistence of de facto segregation that has manifested in a plethora of ways today, beyond just disparities in educational opportunity. Although Brown’s majority opinion states that race can still be considered when applicants directly tie their race to particular perspectives and experiences, it also emphasizes that “what cannot be done directly cannot be done indirectly,” referencing Cummings v. Missouri (1867). Justice Sotomayor addresses this false nicety for what it is, calling it “lipstick on a pig,” as this contention provides little leeway for universities to effectively consider race in their application decisions. [17]

Historically, the Court has abided by the doctrine of stare decisis, which asserts that courts will adhere to precedent, or literally “stand by things decided.” [18] While this doctrine is an integral part of the decision-making of courts, it has no formal framework. Although this leaves justices to individually rely on their judgment, this is most likely preferable to a cemented process which could entrench poorly decided precedent in cases such as Plessy v. Ferguson and Dred Scott v. Sandford.

However, a flippant court is a destructive one and there must still be some consensus on the matter of this doctrine: firstly, on the reality of the stare decisis doctrine, and, secondly, that the benchmark for overcoming stare decisis should be a significant one. Today’s Supreme Court has no such consensus. While all current conservative justices have acknowledged the significance of stare decisis, Justice Thomas has rejected the doctrine altogether. [19] There have certainly been a number of cases in which precedent was not constitutional, but it is no small matter to consecutively overturn a slew of landmark cases. The extreme ideological skew of this Court also heightens the danger of this tendency. As stated previously, protections of equality are at times decided by very narrow margins and, thus, the added layer of protection that the stare decisis doctrine provides is all the more important. The Supreme Court’s decision in June will certainly have immediate consequences on college admissions during this coming year’s cycle. In fact, the consequences of eliminating affirmative action policies at universities are already well-documented. [20]

In light of such derailments from precedent, it is all the more important now to look back on our nation’s history with clarity and rationality. While the majority in today’s Court has insisted on evaluating the landmark Brown v. Board ruling and the 14th Amendment in a vacuum, the realities of our present and our past beg us to take them into consideration. Just as Brown v. Board established that separate but equal cannot exist, Justice Sotomayor argues that it also established that “equality cannot exist with acknowledgement of inequality”. [21] Just as the 14th Amendment demanded that all people receive the equal protection of the laws, it also provided legal backing race-conscious legislation that worked to provide all people with equal opportunities. While this recent decision was limited to higher education, these consequences will reverberate through all spheres as our educational systems are the cornerstone of our society and the diversity of our student bodies serves to promote the intellectual vitality of our classrooms. However, the fight for equitable education is far from over.

Edited by Stella Tallmon

[1] Brown v. Board of Education, 347 U.S. 483 (1954).
[2] “Affirmative Action,” in Wex, Legal Information Institute, Cornell Law School, accessed

August 21, 2023, https://www.law.cornell.edu/wex/affirmative_action. [3] “About,” Students for Fair Admissions, accessed August 21, 2023,

https://studentsforfairadmissions.org/about/.
[4] “14th Amendment,” in U.S. Constitution, Legal Information Institute, Cornell Law School,

accessed August 21, 2023, https://www.law.cornell.edu/constitution/amendmentxiv.
[5] Students for Fair Admissions v. President and Fellows of Harvard College, 600 US __

(2023).

[6] Regents of the University of California v. Bakke, 438 U.S. 265 (1978); DeFunis v. Odegaard 416 U.S. 312 (1974).

[7] Regents of the University of California v. Bakke (1978). [8] Grutter v. Bollinger, 539 U.S. 306 (2003).

[9] Fisher v. University of Texas, 570 U.S. 297 (2013); Fisher v. University of Texas, 579 U.S. __ (2016).

[10] CJ Libassi, “The Neglected College Race Gap: Racial Disparities Among College Completers,” Center for American Progress, May 28, 2018, https://www.americanprogress.org/article/neglected-college-race-gap-racial-disparities-among-co llege-completers/.

[11] Students for Fair Admissions v. President and Fellows of Harvard College (2023). [12] Students for Fair Admissions v. President and Fellows of Harvard College (2023). [13] Students for Fair Admissions v. President and Fellows of Harvard College (2023). [14] “Affirmative Action,” in Wex.

[15] Students for Fair Admissions v. President and Fellows of Harvard College (2023).

[16] “Freedmen’s Bureau Acts of 1865 and 1866,” in About the Senate, U.S. Senate, accessed August 21, 2023, https://www.senate.gov/artandhistory/history/common/generic/FreedmensBureau.htm.

[17] Students for Fair Admissions v. President and Fellows of Harvard College (2023).
[18] “Stare Decisis,” in Wex, Legal Information Institute, Cornell Law School, accessed August

21, 2023, https://www.law.cornell.edu/wex/stare_decisis.

[19] David Litt, “A Court Without Precedent,” The Atlantic, July 24, 2022, https://www.theatlantic.com/ideas/archive/2022/07/supreme-court-stare-decisis-roe-v-wade/6705 76/.

[20] Antonio Pequeño IV, “Here’s What Happened After Affirmative Action Ended in These 4 States,” Forbes, June 29, 2023, https://www.forbes.com/sites/antoniopequenoiv/2023/06/29/heres-what-happened-after-affirmati ve-action-ended-in-these-4-states/?sh=6c50e8437ba9.

[21] Students for Fair Admissions v. President and Fellows of Harvard College (2023).