On June 29, 2023, the Supreme Court came to a decision on Students for Fair Admission Inc. v. President and Fellows of Harvard College and Students for Fair Admission Inc v. University of North Carolina. In a 6-3 decision, the Supreme Court invalidated admission policies, effectively ending decades of race conscious admission policies.

In the 1960s and 1970s, colleges and universities created their own affirmative action policies to battle past discriminatory practices against disenfranchised and underrepresented groups. 

On June 28, 1978, The Supreme Court invalidated the use of racial quotas in California v. Bakke. Allan Bakke was denied acceptance to the University of California Davis Medical School.

UCDavis had two admission programs at the time Bakke applied. A general admissions program which handled white students, and a special admissions program which handled minority and economically disadvantaged applicants. White students could request placement under the special program if they were economically disadvantaged, but no white student had been admitted through the special program. For each year’s class of 100 incoming students, 84 seats were open for applicants from the general admissions program while 16 seats were reserved for students from the special admissions program.

Bakke’s score was too low to be accepted through the general admissions program. As a white man of fair economic standing, he wasn’t eligible for the special admissions program. In the two years he was denied, students were accepted through the special admissions program with test scores lower than Bakke’s.

Bakke filed a suit in California trial court claiming the special admissions process violated the equal protection clause of the 14th amendment, and title VI of the civil rights act which prohibited racial discrimination by those who receive federal funding. He won the case in trial court, California’s Supreme Court, and the U.S. Supreme Court granted certiorari meaning four Justices did not agree to review the case therefore the Supreme Court did not hear the case.

The Supreme Court held that although universities can use race to evaluate candidates under some circumstances, they can’t enact a racial quota system. There was no majority opinion. Justice Lewis Powell announced the decision, and four justices agreed the university’s special admissions program had discriminated against Bakke. Justice William Brennan concurred in part and dissented in part claiming that programs which use racial classifications to remedy past discriminations serve a compelling state interest. In the end, The Supreme Court ruled it unconstitutional to hold a racial quota for admissions.

On June 23, 2003, Grutter v. Bollinger, The Supreme Court sided with the University of Michigan’s affirmative action policies. Barbara Grutter was denied acceptance from University of Michigan law school even though she had a 3.8 undergraduate GPA and 89% LSAT score. Grutter filed suit claiming her application denial was racial discrimination.

Grutter argued that Michigan’s policy of considering applicants' race gave minority students an advantage against equally qualified white applicants. The District Court sided with Grutter and claimed the school practices were unconstitutional. The Court of Appeals reversed the District Court’s verdict. The Supreme Court granted cert.

The issue was whether a public school could consider race as a factor in admissions. The Supreme Court held that higher education institutions may consider race as one factor of many in order to reap the educational benefits that come from a diverse student body. In a 5-4 decision, Justice Sandra Day O’Connor enacted strict scrutiny. To survive, the school had to identify a compelling reason for classifying based on race and show the policy was narrowly tailored to further that interest.

Justice O’Connor distinguished the admission policies in Bakke’s case from Michigan’s policies. Rather than have a set number of minority admissions to fulfill, Michigan seeked to admit a “critical mass” of diverse students. Unlike in Bakke’s case, race was only one factor of many that played into admission decisions. Michigan won over Grutter. Justice Ruth Bader Ginsberg concurred that race-based classifications in admissions plans can’t be used forever, but emphasized their necessity for the time being.

The afternoon of June 29, 2023, justices ruled in favor of The Students for Fair Admissions Inc. (SFFA) that the admission programs by Harvard and UNC violated the constitution's equal protection clause. Among other things, SFFA claimed the schools discriminated against Asian students with SATs and GPAs higher than any other racial group. Asian students made up 29% of last year’s admissions but should make up more, according to SFFA. Edward Blum, a conservative activist, founded the group.

The lower courts upheld the admission policies of both UNC and Harvard. The case asked the court to overrule the precedent set by the Grutter decision.

In a 40-page opinion to address both Harvard and UNC cases, Chief Justice John Roberts began reviewing the courts past decisions in regard to the equal protection clause. The Supreme Court's past decisions, he concluded, reflected the clause’s sole purpose: “doing away with governmentally imposed discrimination based on race.” Roberts emphasized the Supreme Court had only allowed universities to have race-based admission policies within the confines of narrow restrictions. He did not find Harvard or UNC programs to comply with those restrictions.

To Chief Justice Roberts, both programs had commendable goals, such as “training future leaders for the public and private sector” and “promoting the robust exchange of ideas.” However, he found these goals too vague to be measurable in court. He questioned how courts determine whether a future leader has been properly trained or how to decide if an exchange of ideas is “robust.”

The Harvard and UNC programs lacked a logical end point, which was suggested in Grutter, Roberts observed. Both Harvard and UNC acknowledged their affirmative action programs did not have a “sunset” date.

The court's decision did not forbid schools from looking at race on a case-by-case basis. Schools can consider how race affected an applicant's life whether it be discrimination, motivation, or otherwise. He cautioned that a “benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university.”

The majority’s decision left room for service academies such as West Point and the U.S. Naval Academy to use race-conscious admissions programs. The Biden administration, which filed a brief in favor of UNC and Harvard, said that senior military officers find it important to have a diverse officer corp. The service academies were not a part of the cases, and the lower courts did not consider the argument. Roberts said that the Supreme Court would not weigh in on the issue “in light of the distinct interests that military academies may present.”

Justice Clarence Thomas presented a concurring opinion of which the notoriously silent justice read a summary from the bench. He was sharply critical of the UNC and Harvard programs from a practical perspective. He stated that such programs do nothing to increase the number of blacks and Hispanics that attend college but rather redistribute individuals among colleges and universities. Justice Thomas wrote those accepted into universities may be harmed by the stigma surrounding race-based admissions programs.

Justice Sonya Sotomayor wrote a 69-page dissent which stated the limited use of race by colleges and universities has equalized the educational opportunities of all students and has improved racial diversity on college campuses. She concluded, “The devastating impact of Thursday’s decision, cannot be overstated.”

The Thursday, June 29, 2023 ruling changed the fate of race-conscious admission programs for colleges and universities, but justices could soon consider the constitutionality of other efforts to improve diversity, though those efforts may not directly take race into account.