Decisión de la Corte Suprema de los EEUU sobre admisión a las universidades
Julio 1, 2023

The Supreme Court’s Decision Reveals a Gulf Between Two Views of Race and Merit

The U.S. Supreme Court looked behind the curtain. Then it knocked over the table and chairs. Now, colleges are left with one big mess and a slew of questions that will define a new era for college admissions in a nation riven by racial disparities.

In its long-awaited decision on Thursday, the court held that the way Harvard University and the University of North Carolina at Chapel Hill had considered applicants’ race violated the 14th Amendment’s Equal Protection Clause. The ruling, split along the court’s ideological lines, essentially struck down four-and-a-half decades of legal precedent allowing institutions to consider race as one of many factors in their evaluations. The decision, every bit as drastic as many college officials had long feared, will shift the way many admissions offices assess students. And it will likely change, perhaps dramatically, the racial and ethnic makeup of many campuses.

The ruling was a resounding victory for Students for Fair Admissions, known as SFFA, which sued Harvard and UNC, in 2014. For all the complexities contained within the two cases, SFFA’s argument in each boiled down to this: Race-consciousness is no different than racial discrimination. And in the end, the court agreed.

Writing for the majority, Chief Justice John G. Roberts Jr. forcefully rejected Harvard and UNC’s race-conscious admissions practices. Anyone who reads the opinion closely will detect the same apparent impatience with colleges, the same mistrust of their methods, that he and other conservative justices expressed during oral arguments last fall. The court concluded that Harvard and UNC’s stated goals were too elusive, too difficult to measure, to withstand strict scrutiny.

Above all, the court agreed with SFFA’s contention that the Constitution requires colorblindness in all federal laws, a notion that derives from a particular reading of the 14th Amendment, which guarantees “the equal protection of the laws” to all U.S. citizens. An applicant, Roberts wrote, “must be treated based on his or her experiences as an individual — not on the basis of race. Many universities have for too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice.”

That conclusion reveals the gulf between two readings of the Constitution. Two notions of merit in admissions. Two understandings of the role that race plays in shaping students’ educational opportunities.

Justice Ketanji Brown Jackson, who is Black, slammed Roberts’s conclusions in her dissent. “With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat,” she wrote. “But deeming race irrelevant in law does not make it so in life.”

And Justice Sonia M. Sotomayor, the court’s lone Latina justice, wrote: “Today, this Court stands in the way and rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits. In so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.”

The court did not state explicitly that it had overturned Grutter v. Bollinger, the 2003 decision that upheld the limited use of race in admissions to achieve the educational benefits of diversity. But in his concurring opinion, Justice Clarence Thomas, who is Black, wrote that the majority’s opinion clarifies that “Grutter is, for all intents and purposes, overruled. And, it sees the universities’ admissions policies for what they are: rudderless, race-based preferences designed to ensure a particular racial mix in their entering classes.”

Art Coleman, managing partner and co-founder of EducationCounsel LLC and a supporter of race-conscious admissions, called the court’s ruling disingenuous. “It’s saying, ‘Here are the factual reasons why Harvard and UNC failed to meet the standard of Grutter,’” he said. “But when you actually step back and read the opinion, they eviscerated the Grutter standard, saying that the educational benefits of diversity are no longer sufficiently concrete or capable of our evaluation. What they have done, I think — perhaps fearful of yet another decision that calls out the radical nature of the court opinion — is simply an attempt to tread within the zone of ‘We’re simply applying precedent, and you lose.’”

The court’s decision leaves the nation’s colleges in a challenging position: How to enroll a diverse student body in a land where race continues to matter while using an evaluative process in which, all of a sudden, 45 years after Bakke, race can’t matter?

For higher ed, this is a moment of psychology more than a moment of legal compliance.

That leads us to another question, perhaps the most immediately compelling one arising from the court’s opinion: Is a college still free to consider an applicant’s race and ethnicity if they choose to reveal those aspects of their identity, say, in admissions essays or responses to short-answer questions? And, if so, how will that work?

“Nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise,” Roberts wrote. “But … universities may not simply establish through applicant essays or other means [what] we hold unlawful today.”

Roberts goes on to say that a “benefit” given to an applicant who overcame racial discrimination “must be tied to that student’s courage and determination.” A benefit given to a student whose heritage or culture inspired them to pursue a leadership position or goal “must be tied to that student’s unique ability to contribute to the university.”

And so, he concludes, “the student must be treated based on his or her experiences as an individual — not on the basis of race.”

Yes, colleges apparently will be able to pose specific questions to applicants that might well end up inviting them to describe how their racial and ethnic identity shaped them in some way. But, no, admissions offices shouldn’t see this as a loophole for getting around the court’s ban on considering race in itself.

“They have preserved, in essence, the dignity of the individual, which is a cornerstone of 14th Amendment jurisprudence,” said Coleman, a former deputy assistant secretary of the U.S. Department of Education’s Office for Civil Rights. “Applicants can tell the story of their lived experience, their life perspective, and what they think they could bring to an institution. But the minute you start to make any judgment simply tied to an applicant’s race, it’s problematic. It’s an infinitesimally fine line, but it is a line that we’re going to have to draw.”

How admissions offices might adjust their applications to thread that needle will be among the important developments to watch. Some experts expect selective colleges to add new essay prompts — or adjust existing ones — about applicants’ lived experiences in response to the decision.

But those fine-grain practical details relate to deeper questions about race, says Dominique J. Baker, an associate professor of education policy at Southern Methodist University. “The majority’s opinion rejects the reality of structural racism,” she said. “It hammers in on the individual’s experiences with racism, but not the way that we have created our society and systems that support racism. How can you acknowledge that individual people experience racism without acknowledging that our systems are built to do this?”

Baker, a former admissions officer, said she worries that colleges will, for perhaps understandable reasons, overreact to the ruling and enact other changes to admissions and financial-aid practices that might not be necessary. “Colleges really don’t like litigation — they would prefer not to be sued,” she said. “The opinion states that this is only about admissions decisions, but my concern is that that won’t stop institutions from being scared about lawsuits and making other types of decisions.”

In two closely watched cases, the U.S. Supreme Court has ruled unconstitutional the consideration of race in admissions. Here’s a primer.

After reading the court’s opinion on Thursday, Angel B. Pérez, chief executive of the National Association for College Admission Counseling, expressed concerns about the short- and long-term impact on colleges’ efforts to maintain a racially and ethnically diverse student body. “Today’s decision is going to make it lot harder and a lot more expensive … to bring in a diverse class,” he said. “My concern, and the association’s concern, is that the majority of states and institutions don’t have those resources, but they also don’t have the current political will.”

Pérez also worried about the human impact of the decision among young Americans. High-school counselors, in particular, he said, will have to contend with “the potential psychological effects on students of color in this country right now, who may not necessarily feel like they belong or they matter.”

That’s an especially urgent concern in an era of growing skepticism of colleges and the value of a degree. “Colleges really have their work cut out for them in terms of really making sure that they’re thinking very long and hard about recruitment efforts, and probably expanding those recruitment efforts,” said Jessie Brown, senior vice president and chief of staff at the American Council on Education. “It will be important for institutions to really look at the overall big picture, about the whole-institution approach to recruiting. It won’t just be enrollment managers acting in vacuum. They’ll need to be working with presidents, provosts, academic deans, and student-affairs leaders and really trying to make sure that this one Supreme Court decision doesn’t derail all of their diversity efforts.”

The court’s decision will likely force institutions to confront difficult questions about the fairness of other components of their admissions processes. On a day when many college officials were licking their wounds, one leader candidly described the inconsistencies he sees in many selective colleges’ admissions policies.

“We are well aware that legacy admissions and other preferential-admissions practices are overwhelmingly biased in favor of white students,” said John L. Comerford, president of Otterbein University, in Westerville, Ohio. “It just smacks of hypocrisy to defend the importance of diversity in classrooms while you’re doing these things, by your own choice, that close the door on students of color. Colleges do it out of a sense of elitism and prestige, and concern about trying to keep donors happy.”

Otterbein does not consider race in admissions. But over the last five years, Comerford said, the university had increased enrollments of students of color, from 12 percent to a projected 35 percent this fall. How? Through partnerships with urban school districts serving diverse student populations, greater investments in need-based financial aid, and doubling down on ways to make the campus a more welcoming place for all students, he said.

“It’s high time that our industry is called out for talking a lot about diversity and inclusion,” Comerford said, “but not practicing it in terms of how we actually recruit, retain, and support students with financial aid. Often the walk does not match the talk.”

The court’s decision revealed a fundamental tension between two views of what’s really at stake in selective admissions. In one view, it’s a simple equation in which one applicant’s plus is another applicant’s minus. In the other view, it’s a complex, individualized evaluation of numerous factors all at once, in which the outcomes benefit a diverse society. Though the former view prevailed, the latter remains as important as ever for colleges to hold close.

“We have moved away from thinking of higher education as a public good to more of an individualistic, how-I’m-going-to-get-ahead perspective,” Liliana M. Garces, a professor of higher education at the University of Texas at Austin, told The Chronicle in a recent interview. “But if we come back to the public mission of higher education and its role in advancing the democratic goals of a multiracial society, we understand that institutions trying to build a diverse student body is advancing interests that benefit all of us in a multiracial democracy, by building capacity for diverse students to become leaders. If you ground yourself in that public role and mission of higher education, college admissions is not a zero-sum game.”

The big question: Will the court’s decision prompt a moment of retrenchment, or a new push to recruit, enroll, and finance a student body that reflects the diversity of the nation? And what are institutional leaders prepared to do, and not just say, about their commitments to such goals?

Coleman, at EducationCounsel, put it this way. “For higher ed, this is a moment of psychology more than a moment of legal compliance.”

Read other items in this What to Know About Race-Conscious Admissions package.
We welcome your thoughts and questions about this article. Please email the editors or submit a letter for publication.


Now the Time to End Legacy Admissions

With the Supreme Court ruling today that admissions offices may not consider race in their decision process, the nation’s most selective colleges face a test. Will they remain committed to enrolling a diverse student body, knowing that diversity benefits all students on campus, or will they revert to the bad old days, when elite colleges were reserved mainly for the privileged?

An easy bellwether will be how colleges handle legacy preferences. Eliminating such preferences — an advantage to the relatives of alumni in the admissions process — will not offset the harm that will be done to campus diversity by today’s ruling, but ending a practice that disproportionately harms students of color and that three out of four Americans disapprove of is so obvious and easy a response that any college that does not is making it clear how little it genuinely cares about diversity.

Legacy admissions wield the greatest power at the same colleges that will be the most affected by the Supreme Court’s ruling.

Although many colleges consider legacy status, legacy admissions wield the greatest power at the same colleges that will be the most affected by the Supreme Court’s ruling. Eighty percent of the institutions that admit less than a quarter of their applicants also make it three to five times easier for legacies to get in. Numbers are not easy to come by on legacy applicants because colleges hide them away, but the trial of the case against Harvard revealed that its legacy applicants were five times as likely to be admitted as students who didn’t win that particular birth lottery.

The trial also revealed that 76 percent of legacy applicants and 77 percent of legacy admits at Harvard were white. That’s not surprising, given the history of racial exclusion at most highly selective colleges. Legacy admissions effectively operate as affirmative action for the white and wealthy.

The demographics of legacy are important to consider because one of the last-ditch defenses of legacy preferences is that, as colleges start to become more diverse, ending that type of preference will hinder the children of alumni of color. Leaving aside the dubious ethics of justifying a corrupt practice by allowing slightly more people to benefit from the corruption, the reality is that people have been trying to ban legacy preferences for decades because they give an advantage to the people who already enjoy the most advantages.

Another of the disingenuous defenses highly selective colleges make for legacy preferences is that they function only as tiebreakers for highly qualified students. Let’s accept the premise that legacies are indeed well prepared to succeed at elite colleges. Why wouldn’t they be? If your parents graduated from Yale or Stanford, you probably enjoyed the financial benefits of their degrees, social networks, and knowledge of the college-application process. Is it really a surprise that someone who has access to private school, math camps, sports clinics, SAT tutors, and a college-application consultant is a strong applicant? Why put a thumb on the scale for the people who least need it?

Worse yet, at highly selective colleges, tiebreakers are everything. No one is admitted to these colleges due to one factor, whether it be test scores, grades, athletic ability, race, or, indeed, legacy status. In order to have a chance of admission, an applicant must have multiple strengths, but even that is not enough. After admissions officers have narrowed down the pool, there are still too many highly qualified candidates for a limited number of seats in the freshman class. During a process known as shaping a class, a single factor can make a large difference in a highly qualified applicant’s chances of being offered admission over other equally talented students.

Why put a thumb on the scale for the people who least need it?

During the trial, Harvard’s admissions dean talked about two of those factors. He testified that coming from a low-income household raises the odds of admission for a student who receives a top academic rating from 15 percent to 24 percent, which is fair since educational opportunity is tied so closely to income and wealth. Less fair is the fact that a legacy with a similarly high academic ranking sees those odds go from 15 percent to 55 percent. In other words, if you’re smart and poor, you’re still getting rejected by Harvard three out of four times. If you’re a smart legacy, however, you’re more likely to get into Harvard than you are to be rejected.

Legacy preferences have always been unethical and anti-egalitarian, but now that the Supreme Court has barred colleges from considering race, they’re simply untenable. The presidents of elite colleges face a diversity test this summer. Here’s hoping they pass it.

Read other items in this What to Know About Race-Conscious Admissions package.
James S. Murphy is deputy director of higher-education policy at Education Reform Now and the author of a series of issue briefs on “The Future of Fair Admissions.”

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 racial 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.”

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.”

Update (June 29, 2023, 8:32 p.m.): This article has been expanded with additional quotations and other new material.
Read other items in this What to Know About Race-Conscious Admissions package.


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