By Bassil Chughtai & Andy Carnabuci

On June 29, 2023, in a monumental decision for the future of college admissions and career opportunities, the United States Supreme Court held that affirmative action in college admissions violates the Equal Protection Clause of the Constitution  

  In 2022, the University of North Carolina and Harvard University were both sued by the group Students for Fair Admissions, which purported to represent the interests of Asian-American students. The group sued on the basis that the two universities had been using race-conscious admissions to discriminate against certain races, most particularly Asians, in violation of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. After surviving at the district and circuit level federal courts, both cases were then appealed to the U.S. Supreme Court.  

  Chief Justice Roberts' majority opinion addressed several arguments against affirmative action, including the idea of affirmative action's time being up, as well as the judicial immeasurability of the state interests identified and advanced by affirmative action. Proposing that the compelling state interests of a discriminatory law must be quantifiable in their benefits, Roberts argued that there will be no point in the future where we can conclusively decide on whether the state's interest has been effectively advanced in the forms of “training future leaders in the public and private sectors” and “better educating students through diversity.” 

 Roberts also held that the Court was simply following the precedent set by prior rulings, which had indicated that affirmative action was to, at some point, end. This “end date” had also already been set to be approximately 25 years after the prior Grutter and Gratz rulings of 2003, according to the majority opinion of Justice Sandra Day O'Connor. Hence, Roberts, joined by fellow justices, decided that it was time for affirmative action to end, 20 years after its last major defense. Roberts held, “eliminating racial discrimination means eliminating all of it.”  

  Other justices made similar arguments and expanded on those made by Roberts. Justice Kavanaugh's opinion largely reflected that of Roberts, holding that it was time to end the program based on a timetable established previously in Grutter. Justices Thomas and Gorsuch expanded on the faults of affirmative action, arguing that it had created adverse effects in the world of equality. Justice Thomas invoked his own originalist analysis to argue for color-blind ideology in his opinion, stating that by instituting a race-based program where some races benefit from its function, other races must, by default, be hurt in their college admissions chances. Therefore, we must not discriminate in our efforts to counter discrimination itself.  

  Opposing the majority opinion were Justices Kagan, Sotomayor, and Jackson. In their dissents, Sotomayor and Jackson both vehemently defended affirmative action. Justice Sotomayor emphasized the equitable appeal of the program, through providing opportunities to minorities who have faced historic discrimination and setbacks in our country's history.  

  Justice Jackson further develops Justice Sotomayor's argument, while additionally discussing the effects on representation that affirmative action can have. She argues that despite having such a diverse population, United States' positions of leadership are predominantly occupied by white males. By allowing minorities and women increased access to higher education, Jackson argues, we will be making a greater effort to make our leaders look like our people and adequately represent the population. In a pointed response to Justice Thomas's opinion, Jackson wrote, “deeming race irrelevant in law does not make it so in life.”  

  Throughout the latter half of the 20th century, more legislation was implemented to ensure equality for not just black citizens, but for many minority groups, or “protected classes” residing in the nation. It was during this push that education as well as employment and federal contracting first began to see the implementation of affirmative action.  

 In 1978, affirmative action was constitutionally challenged in Regents of the University of California v. Bakke. In this ruling, the Court held that affirmative action programs must survive the strict scrutiny test for facially discriminatory statutes.  A majority held that educational diversity at large qualifies as a compelling state interest—however remediation of past discrimination was not so held by a majority. The Court also circumscribed affirmative action so that race must never be used as a stereotype or negative (in this case in the form of quotas), and intimated temporary nature of such a program. Bakke proved difficult to implement by the lower federal courts, in large part because of the lack of a controlling majority opinion. Lower courts based their analyses of subsequent affirmative action challenges on Justice Powell's individual—but controlling—opinion.  

  In 2003, the Court in the Grutter and Gratz cases in Michigan attempted to clarify this situation by affirming the prior Bakke ruling, while noting a 25-year “time limit” on the consideration of race in admissions. Justice Sandra Day O'Connor's majority opinion affirmed that affirmative action in admissions should end in 25 years. However, the court allowed one of Michigan's affirmative action programs to continue. This time limit would form the basis of much of the majority opinion of Chief Justice Roberts in the Harvard and UNC cases.   

  This ruling marks the effective end of a system that has been in place for half a century as a part of college admissions. Additionally, the majority opinion seemed to suggest a new aspect to strict scrutiny analysis, holding that the state interests that justify discriminatory programs must be judicially quantifiable, as well as of compelling importance. In one of the more important cases in recent memory, formal affirmative action in the college admissions process is no longer.  

  The attorneys at Rose Kallor are available to assist employers with workplace policies, including those governed by the Court's recent decision, as well as questions about affirmative action plans and programs in the workplace. We can be reached at (860) 361-7999.