Linda Ashar, J.D.


On June 29, 2023, the U.S. Supreme Court announced its decision in two consolidated affirmative action cases brought by nonprofit Students for Fair Admissions, Inc. against Harvard College and the University of North Carolina (UNC). These cases challenged the universities’ affirmative action admissions procedures as violating the Equal Protection Clause of the U.S. Constitution’s Fourteenth Amendment for considering race as a criterion in admissions decisions.

Disregarding its own well-settled case precedents, notably Regents of Univ. of California v. Bakke and Grutter v. Bollinger, the U.S. Supreme Court agreed with Students for Fair Admissions, Inc. in a 6-3 opinion. This decision unleashed a furor of media commentary questioning the future of affirmative action and the meaning of diversity on college campuses, and it brought scathing dissents from the Court’s minority.

In her dissenting opinion in the case, Justice Sonia Sotomayor stated that the majority’s decision “subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society.”

What Is the Purpose of Affirmative Action?

The purpose of affirmative action is to open opportunities to disadvantaged classes of otherwise qualified individuals who have traditionally and pervasively been subjected to discrimination in hiring and education. That prejudice is due to the U.S.’s social legacy of racial, gender, and ethnic prejudice, rooted in the history of slavery, gender stereotypes, and upper-class privilege.

The concept of affirmative action began with President John F. Kennedy’s 1961 Executive Order No. 10925, mandating equal hiring and workplace practices by all contractors and labor unions engaged in government contracts. The order established a President’s Committee on Equal Employment Opportunity to organize the program and to study and recommend “affirmative steps.”

Furthermore, the order directed the President’s Committee to “encourage the furtherance of an educational program by employer, labor, civic, educational, religious, and other nongovernmental groups in order to eliminate or reduce the basic causes of discrimination in employment on the ground of race, creed, color, or national origin.”

In 1965, President Lyndon B. Johnson reaffirmed equal opportunity with Executive Order No. 11246. In 1967, the historic buzzword “affirmative action” appeared – along with an expansion of protected classes that would include women – in Executive Order No. 11375.

President Johnson ordered that a government contractor “will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship.”

The program continued to grow with Presidential directives and Congressional legislation to expand identified minorities and include the economically disadvantaged. One example is the Disadvantaged Business Enterprise (DBE) Program, managed by the U.S. Department of Transportation (DOT) pursuant to Congressional mandate.

According to DOT’s website, the DBE assistance is available to small businesses at least 51% owned and daily managed by socially and economically disadvantaged individuals. The site notes, “African Americans, Hispanics, Native Americans, Asian-Pacific and Subcontinent Asian Americans, and women are presumed to be socially and economically disadvantaged. Other individuals can also qualify as socially and economically disadvantaged on a case-by-case basis.”

In her article, “A History of Affirmative Action in College Admissions,” historian Genevieve Carlton explained that the federal government’s affirmative action mandate, combined with the civil rights movement, spurred colleges to voluntarily adopt admission policies to increase minority enrollment. They recognized the core benefits affirmative action was seeking to achieve by opening closed doors, which meant increasing diversity in admissions.

Harvard and UNC: Race Is Only One of the Factors Considered in Student Admissions

In Students for Fair Admissions, Inc., Harvard and UNC argued that their consideration of race is but one of several factors they consider when admitting students. They claimed their admissions policies complied with established law and promoted a diverse student population.

According to the Supreme Court’s opinion, Harvard’s admission process consisted of several steps and the final step reviewed four pieces of information about the candidate:

  • Legacy status
  • Recruited athlete status
  • Financial aid eligibility
  • Race

Nevertheless, the Supreme Court emphasized that for Harvard, “race is a determinative tip for a significant percentage of all admitted African American and Hispanic applicants.”

UNC’s process was similar. In UNC’s final step, a committee “may consider” the applicant’s race.

However, the Supreme Court rejected both these admission procedures as unconstitutional.

There May Be More Affirmation Action Lawsuits in the Future

In the Supreme Court’s majority opinion, Chief Justice Roberts observed: “Because Harvard’s and UNC’s admissions programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful endpoints, those admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause.”

While this view seems to leave the door ajar for the universities to reform their programs to be “focused and measurable,” avoid stereotyping and achieve “meaningful endpoints” the Court’s statement is sufficiently vague to usher in more lawsuits through the same door. Affirmative action is not a justification in itself.

Chief Justice Roberts’ only suggestion for what a university might consider as to race specifically, is “an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” In response, Justice Sotomayer characterized this statement in her dissent as “putting lipstick on a pig.”

Indeed, given the majority’s imprimatur against race questions in admissions procedures, Chief Justice Roberts’ exception seems fraught with legal pitfalls, depending on how such a discussion came about. One glaring pitfall could be asking an applicant, “Have you been affected by race discrimination?”

What Is Diversity and How Is It Achieved?

Until now, consideration of race as only one of several factors has been a reasonable measure to achieve diversity. The word “diversity” is used generally to recognize differences in:

  • Race
  • Age
  • Ethnicity
  • Educational background
  • Gender

Affirmative action in higher education gained traction in 1978 in Regents of Univ. of California v. Bakke. In that case opinion, Supreme Court Associate Justice Lewis F. Powell, Jr. applauded increasing diversity to be a legitimate, compelling interest, permitting a university to consider the race of applicants in its admissions process.

Justice Powell’s opinion has since been supported by prevailing social view and research. Diversity is important for positive achievement and better education.

According to a 2019 PEW Research Center survey, the majority of Americans recognize the value of racial and ethnic diversity and support programs that promote diversity on college campuses. This belief is supported by several studies explained by Katherine W. Phillips in her article in Scientific American, “How Diversity Makes Us Smarter.” Diversity also improves performance and outcomes in medical clinical care, according to research by medical researchers L.E. Gomez and Patrick Bernet.

Related: Supreme Court Changes Immunity Given to Foreign Nations

The Supreme Court’s Ruling Should Motivate the Promotion of Affirmative Action’s Core Values

While some news commentators forecast this ruling as the end of affirmative action in higher education and beyond, this dark interpretation of the Supreme Court’s decision seems extreme. For educational institutions, the Supreme Court’s opinion should motivate promotion of the core social values affirmative action sought to instill in the first place: eliminating inequalities in employment opportunities (hiring, promotion, and compensation), providing equal access to quality education, and encouraging diversity in the workplace and on campuses.

It should also motivate schools and organizations to be more intentional in how these goals can be achieved without the need to use a questionnaire. This promotion should be accomplished through marketing, recruitment and scholarships. The intent should not be to fill quotas, but to ensure fair and equal representation from everywhere in the U.S. without regard to the barriers of privilege accorded by money, familial status, or ethnicity.

Nothing in the Supreme Court ruling prevents a college or university from reaching out to the students in:

  • Every inner-city school
  • Every high school in Appalachia
  • Every rural consolidated school district
  • Every high school in every state capital (for example)

In addition, colleges and universities should be active and present in states’ educational initiatives.

If demographics are appropriately studied and mined, that effort would promote a natural diversity in applications through a healthy cross-section of qualified applicants.

According to former President Barack Obama, stepping up scholarships for underserved minorities and disadvantaged youth also serves the principle of affirmative action. These financial aid opportunities offer direct pathways into specific institutions.

Another method that promotes diversity and opportunity for the underserved is university partnerships with communities. One example is the collaboration of the city of Columbus, Ohio, Columbus State Community College and Columbus City Schools.

Beginning in 2021, the Columbus Promise program provides tuition-free education, plus $1000 annually for expenses, to all graduating seniors of Columbus City Schools who choose to attend Columbus State Community College. Columbus State is an open enrollment school, but this type of program can also be utilized by limited-enrollment schools in partnership with communities.

These examples of educational collaboration suggest that there are worthy approaches around and above the limits seemingly imposed by the U.S. Supreme Court’s ruling on affirmative action in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College. It will take work and commitment, which has always been required to achieve the goals envisioned by affirmative action.

Related: Supreme Court: Social Media Is Not Responsible for Its Content

‘Affirmative Action Considers the Importance of the Starting Line’

An excellent summation of the importance of this commitment is a post by one of my current students in a recent classroom discussion. Jesse Buntin wrote, “We are all born into the same world and all start at the same starting lines of life. When that starting whistle goes off, some of us are fortunate enough to get in cars and go, others ride the bus, some on bikes, skateboards, walking, crawling, limping, etc. Affirmative action considers the importance of the starting line.”