The United States Supreme Court building

(Kent Nishimura / Los Angeles Times)


Supreme Court declares affirmative action unconstitutional

The Supreme Court of the United States (SCOTUS) has just declared affirmative action unconstitutional, which will prohibit universities from legally counting a student’s race as a factor for admission to their institution. 
<a href="" target="_self">Fernando Leiva</a>

Fernando Leiva

August 10, 2023
The Supreme Court of the United States has declared affirmative action unconstitutional, which will prohibit universities from legally counting a student’s race as a factor for admission to their institution. 

Brief history of affirmative action

President John F. Kennedy coined the term “affirmative action” in 1961, following the establishment of the Committee on Equal Employment Opportunity. This same concept would be further developed in Lyndon B. Johnson’s Executive Order 11246, and especially with the Civil Rights Act of 1964, which prohibited any type of discrimination based on a person’s background. 

“Affirmative action” did not become associated with education until 1968, weeks after the assassination of Rev. Dr. Martin Luther King Jr., when students across the U.S. began to rally for more efforts to increase diversity in colleges. In response, the dean of admissions at Harvard University pledged to admit more Black students into the college. Other institutions, including Columbia, Princeton and Yale, followed in Harvard’s footsteps.

The first instance of affirmative action being unsuccessfully contested occurred in 1978, with the SCOTUS case Regents of the University of California v. Bakke, and again in 2003 with Grutter v. Bollinger, both of which upheld the constitutionality of affirmative action. Less than two decades later, however, Regents of the University of California v. Bakke was struck down by Proposition 209, which banned affirmative action altogether in the state of California, including in public education. Similarly, eight other states, including Washington, Michigan, and Texas, prohibited affirmative action

Thus, Grutter v. Bollinger continued to serve as a protector against anti-affirmative action laws for 11 uninterrupted years. This changed in 2014, when the Students For Fair Admissions filed two separate lawsuits against Harvard and the University of North Carolina, arguing that each university had violated the 14th Amendment’s equal protection clause, since their admissions processes favored historically underrepresented student minorities over white and Asian students.


Nine years later, and after an appeal by the SFFA, this 2014 case has come to a close, with a conservative-majority SCOTUS overturning affirmative action in a six-to-three decision.

The majority decision published by the Supreme Court states that “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 end points, those admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause.”

Justice Sotomayor stated in the dissenting opinion that “the Court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society.”

In an adjunct dissenting opinion, Justice Brown stated, “To impose this result in the [Equal Protection Clause’s] name when it requires no such thing, and to thereby obstruct our collective progress toward the full realization of the Clause’s promise, is truly a tragedy for us all.”

While universities cannot use a student’s race as a factor for acceptance, students can still write about the different ways race has impacted their identity and life experiences for essays on a college’s application process. 

Despite the overturning of affirmative action, Justice Roberts stated in a footnote that, “No military academy is a party to these cases,” meaning that military schools are still allowed to give preference to minorities in enrollment.

Again, Justice Sotomayor expressed her dissent at how affirmative action applied to the American military but not to education in the statement, saying “the Court’s carveout only highlights the arbitrariness of its decision and further proves that the Fourteenth Amendment does not categorically prohibit the use of race in college admissions.” 

Direct Implications

It is still unclear how this decision will affect American universities, but it is not the first time that affirmative action has been banned for some institutions. As an example, we can once again turn to California’s UC system.

A 2020 L.A. Times story compares data of average acceptance rates to the UC system overall and between different races.

In 1998, the average acceptance rate for students applying to any UC school was 82%. In the same year, the average acceptance rate for Latino applicants was 76%, and 64% for Black applicants.

In contrast, the acceptance rates for Asian and white applicants were above average in 1998, with 85% and 84% of applicants accepted, respectively. This large gap in acceptance rates for the UC system can be attributed to Proposition 209, clearly demonstrating that anti-affirmative action laws do, in fact, lower diversity. 

As affirmative action is no longer allowed in the U.S., universities across the country can expect a similar trend, with the quantity of accepted and enrolled White and Asian students once again increasing, and the amount of Black and Latino students decreasing. 

The Future

With this new decision in mind, higher-education institutions in the U.S. will have to reconsider ways to continue fostering diversity in their campuses, but the future is uncertain. In a press conference held shortly after the announcement of the Supreme Court’s decision, President Joe Biden criticized the SCOTUS by stating that “discrimination still exists in America. Today’s decision does not change that. It’s a simple fact.

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