Supreme Court Declares Affirmative Action Unconstitutional

Civil Rights Policy Brief #207 | By: Rodney A. Maggay | July 14, 2023
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In November 2014, the group Students for Fair Admissions (SFFA) filed separate lawsuits against Harvard College and the University of North Carolina (UNC). The lawsuits claimed that the race – based admissions programs of both schools violated federal law. Specifically, the lawsuits claimed that the programs were in violation of Title VII of the Civil Rights Act of 1964 and the Equal Protection Clause of the United States Constitution. Bench trials were held in both cases. In both the Harvard College and UNC trials, the district courts sided with both universities and upheld the race – based admissions programs. The Harvard College case was then appealed to the United States Court of Appeals for the First Circuit, which affirmed the trial court’s decision for Harvard. Both cases were then appealed to the United States Supreme Court, which granted certiorari to both cases.

On June 29, 2023, the Supreme Court handed down a 6 – 2 decision in the Harvard College case and a 6 – 3 decision in the UNC case. The voting of the justices only included eight justices in the Harvard College case because Justice Ketanji Brown Jackson recused herself because she had previously served on Harvard’s Board of Overseers. In an opinion written by Chief Justice John Roberts, he declared that the race – based admissions program violated the Constitution’s Equal Protection Clause because the programs “lack sufficiently focused and measurable objectives warranting the use of race, unavoidable use of race in a negative manner, involved racial stereotyping, and lacked meaningful end points.” In total, the entire decision is comprised of six separate opinions and runs 237 pages. LEARN MORE


While the decision in Students for Fair Admissions v. Harvard College was a disappointing decision it was not unexpected. The current 6 – 3 conservative majority on the Court all but ensured that the Court would strike down affirmative action, as bringing an end to the policy has been a conservative rallying cry for decades. While the outcome may have already been decided beforehand, the separate opinions raised some interesting points.

Chief Justice John Roberts in his opinion thoroughly went through the “strict scrutiny” analysis required under the Equal Protection Clause. While that clause guarantees that all people and/or classes of people will be treated equally under the law, an exception is permitted if the rationales put forth by the government pass strict scrutiny. That two step process asks first if the separate classification of a group of people is for the “furtherance of a compelling governmental interest.” And if so, if the use of a separate class for race is “narrowly tailored” or necessary to achieve that interest. Using this legal test, Roberts states that the interests put forth by Harvard and UNC are difficult to measure and seem haphazard to determine if having race – based admissions programs is actually providing a benefit. Because it can be difficult to determine if an admissions program today is helping to train leaders of tomorrow, the Chief Justice finds that the admissions programs may not be the only means to achieve that goal and therefore fail strict scrutiny as he analyzes it. Once his analysis determines that, the programs are declared in violation of the Equal Protection Clause and easily struck down.

However, Justice Kavanaugh wrote an interesting concurring opinion which deserves a reading more than the majority opinion. Justice Kavanaugh writes about the 2003 Grutter v. Bollinger Supreme Court law school admissions decision, which included a discussion on how long affirmative action programs should last. Affirmative action programs, from the beginning, were always meant to be temporary until improvements or progress were deemed made. While the holding in that case says that considering race in a student’s application for law school is permissible, a number of Justices in that case stated that affirmative action may not be necessary twenty – five years in the future. Justice Sandra Day O’Connor, who wrote the majority opinion, explicitly said this while other Justices on both sides of the aisle mentioned their hope that affirmative action programs would not be necessary in twenty – five years. Justice Ruth Bader Ginsburg agreed although warned that it should not be so firm that affirmative action would not be needed at such a definite date. This discussion from the prior case is key to Justice Kavanaugh’s opinion because it opens the door to the discussion whether affirmative action programs is still needed today or should end.

The majority opinion in this case seems to want to end affirmative action regardless of the current landscape in the U.S. In the U.S. today, there is still a hostility to Asian – Americans and other minority communities that belies the majority opinion’s insistence that there is a true equality of races today. Elderly Asian – American people were brutally attacked during the years of COVID due to a misconception that Asian – Americans brought the COVID virus to the U.S. In Florida, Governor Ron DeSantis just recently signed a bill prohibiting Chinese persons from purchasing real property in the state. In Atlanta in 2021, six Asian – American women were targeted and killed (eight people total were killed in the mass shooting) by a shooter who was a client at their establishment. What these terrible incidents show, and the bigotry and ignorance they show toward Asian – American communities, is that there are still virulent strains of hatred against Asians that could seep into educational policies, including admissions programs now that race is prohibited from being an essential factor. For the Court to declare that there is no longer any racial animus in the U.S. and that the U.S. is colorblind is ignorant of the racial climate in the U.S. today, especially against Asians. Affirmative action programs should not be permanent but today is not the time for the programs to be dismantled. The case may only apply to race – conscious admissions programs but  has the unintended effect of opening the door to potential discrimination against Asians in academia, the corporate world and other industries. Now, in the wake of the decision there are reports that Republicans are going to challenge race based scholarships and that the founder of SFFA, Ed Blum, is going to now challenge the use of race on corporate boards and academic fellowship programs. Because of the current hostile environment against Asians, this case was wrongly decided at this particular time. LEARN MORE, LEARN MORE

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This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact

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