Drawing on centuries of history and 45 years of precedent, Justices Sonia M. Sotomayor and Ketanji Brown Jackson slammed the Supreme Court’s decision Thursday in two highly anticipated college admissions cases.
The two cases that brought the ruling, Students for Fair Admissions v. President and Fellows of Harvard and Students for Fair Admissions v. University of North Carolina, challenged those institutions’ use of race-conscious admissions, and asserted that they resulted in discrimination against Asian American applicants, and in the UNC case, white applicants as well. The UNC case was decided against the university on a 6-3 ruling; the Harvard case was a 6-2 ruling because Jackson, a member of Harvard’s governing board when the case was at an earlier stage, recused herself.
Sotomayor described the ruling as “destructive” and “devastating” in a 69-page dissenting opinion, arguing that “minority students will bear the burden of today’s decision.” Jackson, who wrote a 29-page dissenting opinion of her own, went into detail on the history of racism in the United States, its present-day effects, and the importance of race-conscious admissions in rectifying those problems. Both opinions were joined by Justice Elena Kagan. The justices predicted that Thursday’s decision will roll back a half a century of advances in integration at American colleges and further entrench racist inequities that have existed for much longer.
“If the colleges of this country are required to ignore a thing that matters, it will not just go away,” Jackson wrote. “It will take longer for racism to leave us. And, ultimately, ignoring race just makes it matter more.”
What to Know about Race-Conscious Admissions
A majority opinion written by Chief Justice John G. Roberts Jr. ruled that Harvard and UNC’s admissions policies violated the 14th Amendment’s Equal Protection Clause. The yearslong, highly anticipated case will have implications for selective colleges for years to come.
Jackson and Sotomayor objected to the majority’s decision to impose what they considered a “superficial rule of colorblindness” on these colleges. Such a rule does not make sense, Sotomayor wrote, in a segregated society “where race has always mattered and continues to matter.” The majority’s colorblind indifference to race, she argued, casts racial inequality as a problem of an earlier generation.
Jackson went further.
“With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat,” she wrote.
She later continued: “Our country has never been colorblind. Given the lengthy history of state-sponsored race-based preferences in America, to say that anyone is now victimized if a college considers whether that legacy of discrimination has unequally advantaged its applicants fails to acknowledge the well documented ‘intergenerational transmission of inequality’ that still plagues our citizenry.”
The justices used strong language to condemn the majority’s decision. Sotomayor wrote that it was not grounded in law or fact and defied the “vision of equality embodied in the Fourteenth Amendment.” Like Jackson, she devoted pages of her opinion to a discussion of history, noting that race-conscious policies have been a part of the nation’s efforts to remedy the legacy of slavery since the 14th Amendment was ratified. For example, supporters of the Freedmen’s Bureau Act “defended the law by stressing its race-conscious approach.”
Harvard and UNC have long histories of racial exclusion, Sotomayor noted. In UNC’s case, that history extended until the 1980s, years after the youngest Supreme Court justice — Amy Coney Barrett — had been born. Harvard professors, meanwhile, had at one time promoted “‘race science,’ racist eugenics, and other theories rooted in racial hierarchy.”
Now, these colleges will see their numbers of Black and Latino students decline, Sotomayor wrote. Drawing from Harvard’s argument, she noted that the university predicted that if it were to stop considering race, African American representation would drop “from 14% to 6% and Hispanic representation from 14% to 9%.’”
Sotomayor noted that an applicant’s legacy status and being an athlete can still be considered plus factors in admissions decisions. In excluding race from these considerations, she wrote, “the court imposes a special burden on racial minorities for whom race is a crucial component of their identity.”
Roberts’ decision does note that universities can still consider a student application that explains how race affected their life — something education scholars pointed to Thursday as a notable caveat that may allow colleges to continue to consider race in a very limited way. But Sotomayor dismissed the carveout as “nothing but an attempt to put lipstick on a pig.”
“No one is fooled,” she wrote.
Justice Clarence Thomas’s concurring opinion also got Sotomayor’s attention. Of his argument that Black and Latino students might underperform at selective colleges “because they are less academically prepared than the white and Asian students with whom they must compete,” Sotomayor had a cutting rebuttal: “Justice Thomas speaks only for himself.”
In truth, race-conscious admissions policies have worked, Sotomayor argued. That is no reason to suddenly start ignoring the destructive effects of racial exclusion today, she wrote.
Jackson: Decision a ‘Tragedy’
In her dissent, Jackson proposed a hypothetical scenario that she had described during the oral arguments back in October. Imagine two applicants to UNC whose families trace their roots in North Carolina to the year the university was founded, 1789: a seventh-generation white student named John, and a Black student named James who would be the first in his family to attend UNC.
After explaining the dark history of U.S. government policies that disadvantaged Black Americans and the effects of those policies on their health, financial status, and representation in professions like the law and business, Jackson returned to those two applicants. Considering their races, she said, would allow UNC to assess their lives on an equal basis.
The justification for admissions programs that account for race is inseparable from the race-linked gaps in health, wealth, and well-being that still exist in our society.
“Doing so involves acknowledging (not ignoring) the seven generations’ worth of historical privileges and disadvantages that each of these applicants was born with when his own life’s journey started a mere 18 years ago,” she wrote. Now, it would seem, UNC can still consider the fact that John would be a legacy student, but it can no longer consider James’s race, which UNC would have used as a basis to exclude his ancestors.
The justices acknowledged that critics of race-conscious admissions policies, like Students for Fair Admissions, have called for a deadline when the practice will expire. In her 2003 decision in Grutter vs. Bollinger, which upheld the use of race-conscious admissions by the University of Michigan Law School, Justice Sandra Day O’Connor wrote that in 25 years “the use of racial preferences will no longer be necessary.” Roberts cited that timeline in his ruling.
But Sotomayor dismissed that number as “arbitrary” because O’Connor was speculating and using the number of years that had passed since an earlier race-in-admissions decision. Racial inequality persists, the justices wrote, so policies to fix it are still needed. Jackson argued that they are more important now than they were yesterday given the majority’s ruling.
“Today’s decision will undoubtedly extend the duration of our country’s need for such race consciousness,” she wrote, “because the justification for admissions programs that account for race is inseparable from the race-linked gaps in health, wealth, and well-being that still exist in our society.”
She argued further that colleges have been correct to worry about preventing the feeling of isolation that students may experience on campus if they are one of very few who share their race and background.
“Research shows,” she wrote, “that it matters for students’ ability to learn and succeed while in college if they live and work with at least some other people who look like them and are likely to have similar experiences related to that shared characteristic.”
Jackson called it a “tragedy” that the majority used the equal-protection clause to “obstruct our collective progress toward the full realization of the Clause’s promise.”
Neither justice saw much good in their colleagues’ decision, but Sotomayor ended on an oblique highlight. It almost sounded like a warning.
“Despite the court’s unjustified exercise of power,” she wrote, “the opinion today will serve only to highlight the court’s own impotence in the face of an America whose cries for equality resound.”
