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A rebuke to current admissions practices opens the door to new challenges

Affirmative action ban: A look at the political fallout
Political reporter James Pindell joins Segun Oduolowu to discuss the political fallout of the SCOTUS affirmative action ban.

The Supreme Court’s majority opinion Thursday against affirmative action was certainly loud and impassioned, but was it as clear as it seemed on the surface?

In writing the court’s decision banning racial preferences in higher education admissions, Chief Justice John Roberts left little doubt about his view of race-based affirmative action policies. They amounted to racial “stereotyping,” he wrote, and “cannot be reconciled with the guarantees of the [Constitution’s] Equal Protection Clause.”

What’s more, he contended, the universities’ admission practices disadvantaged some applicants on the basis of their race, a practice that violates American laws and values.

“Eliminating racial discrimination,” he wrote, “means eliminating all of it.”


In a concurring opinion, Justice Clarence Thomas wrote: “Racialism simply cannot be undone by different or more racialism. Instead, the solution . . . is incorporated in our Constitution: that we are all equal, and should be treated equally before the law.”

But even if the words of the justices in the majority opinion were forceful, the concrete implications of their decision were less clear, legal experts said.

In some passages, Roberts conceded that diversity on college campuses is a worthy goal. He even acknowledged that in at least one area admissions officers can still take race into account.

“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,” he wrote.

But then, as if telling admissions officers not to get ahead of themselves, Roberts added, “Universities may not simply establish through application essays or other means the regime we hold unlawful today.”

Tobias Wolff, a constitutional law professor at the University of Pennsylvania, said the opinion has wiped out decades of “clear guidance” on how colleges and universities could pursue diversity. “What they have given us in its place is a lack of clarity and what is likely to be turmoil in admissions for some years to come,” he said.


Wolff predicted that as universities pursue diversity goals while trying to operate “within whatever small space is left after the Supreme Court’s decision,” new lawsuits will challenge those efforts.

Anastasia Boden, director of the constitutional studies program at the Cato Institute, a libertarian think tank, agreed, saying affirmative action opponents are concerned universities will take advantage of that “small space” to covertly continue using racial preferences.

“There will be further litigation,” she said. “This is not the end.”

Hours after the decision was released, President Biden said the federal government will play a role in establishing new practices at colleges and universities to continue to pursue diversity.

“What I propose for consideration is a new standard, where colleges take into account the adversity a student has overcome when selecting among qualified applicants,” he said.

The Education and Justice Departments, he said, will publish guidelines within 45 days to help colleges and universities determine what admissions policies are now legal.

“We cannot let this decision be the last word,” Biden said. “I know today’s court decision is a severe disappointment to so many people, including me, but we cannot let the decision be a permanent setback for the country.”

The decision was the culmination of nearly a decade of litigation challenging Harvard’s and UNC Chapel Hill’s admissions practices. An activist group, Students for Fair Admissions, argued that Harvard’s policies disadvantaged Asian American applicants and that UNC’s harmed Asians and whites.


After losing the Harvard case in lower courts, SFFA appealed to the Supreme Court, where it found a more sympathetic audience.

Roberts has long criticized policies that attempted to redress past racial wrongs with present race-conscious policies. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” he wrote in a 2007 opinion.

Thomas had previously written that racial preferences in college admissions “stamp minorities with a badge of inferiority.”

In Thursday’s ruling, the court found that Harvard’s and UNC’s admissions programs violated the 14th Amendment’s Equal Protection Clause. In his concurring opinion, Thomas described the Constitution and its rules as “colorblind.”

Liberal legal scholars — as well as the court’s three liberal justices — lambasted that interpretation as ahistorical.

The 14th Amendment “was passed in the wake of the end of enslavement. The Reconstruction Congress did so to pass race-conscious legislation that would work to undo the effects of slavery,” said Lia Epperson, a constitutional law professor at American University’s Washington College of Law.

In a dissenting opinion, Justice Sonia Sotomayor wrote, “Ignoring race will not equalize a society that is racially unequal. What was true in the 1860s, and again in 1954, is true today: Equality requires acknowledgment of inequality.”

Katherine Franke, director of the Law, Rights, and Religion Project, a think tank based at Columbia Law School, saw the affirmative action decision as part of a trend of the Roberts court. “What they’ve done is solidified the direction the court has been taking in race discrimination cases for a number of years,” Franke said.


In a landmark 2013 opinion, also written by Roberts, the court’s conservative majority struck down key provisions of the Voting Rights Act, originally passed to prevent state governments from disenfranchising Black voters. That lawsuit, known as Shelby v. Holder, was initiated by the same man, Edward Blum, who founded SFFA, the group that sued Harvard and UNC.

Thursday’s decision had no direct impact outside higher education admissions. But in a concurring opinion, Justice Neil Gorsuch seemed to open the door to challenges that could affect corporate hiring, said Kent Greenfield, a Boston College law professor and former Supreme Court clerk.

In his concurrence, Gorsuch wrote that language in Title VII of the Civil Rights Act, which affects corporations, closely mirrored parts of Title VI of the Civil Rights Act, which covers any organization that receives federal aid, a category that includes almost all colleges and universities.

Thursday’s opinion held that Harvard’s and UNC’s policies violated Title VI, in addition to the 14th Amendment, because the protections of both are considered identical.

Greenfield saw Gorsuch’s comparisons between Title VI and Title VII as implying that a future challenge to corporate diversity efforts might also receive a favorable hearing by the court. “Title VII might be required to be read to be colorblind, as well,” he said.

“It’s always reasonable to read into concurrences when they go beyond the majority opinion and to see them as a signal,” Boden said.


Hilary Burns of the Globe staff contributed to this report.

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