Explained | The U.S. Supreme Court ban on race-based admissions 

How will the rejection of affirmative action affect students? Will it make campuses less racially diverse?

Updated - July 09, 2023 09:49 am IST

Demonstrators protest outside of the Supreme Court in Washington D.C. on June 29, 2023, after the Supreme Court struck down affirmative action in college admissions, saying race cannot be a factor.

Demonstrators protest outside of the Supreme Court in Washington D.C. on June 29, 2023, after the Supreme Court struck down affirmative action in college admissions, saying race cannot be a factor. | Photo Credit: AP

The story so far: The U.S. Supreme Court on June 29 struck down race-conscious student admissions at the University of North Carolina (UNC) and Harvard College, calling such affirmative action policies unlawful. The justices voted 6-3 and 6-2 in favour of Students for Fair Admissions, an organisation against race-based admissions in colleges. The case argued whether admissions systems used by Harvard College and UNC are lawful under the Equal Protection Clause of the Fourteenth Amendment.

What is affirmative action?

Affirmative action is a policy that aims to ensure equal opportunities for historically underrepresented demographics or minorities in educational or professional sectors.

In 1961, President John F. Kennedy became the first leader to link the term with racial equality. According to Smithsonian Magazine, President Kennedy signed an executive order, instructing the government contractors to take “affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, colour, or national origin”.

In 1969, President Richard Nixon signed yet another executive order, directing the U.S. government “to provide equal opportunity in federal employment for all persons, to prohibit discrimination in employment because of race, colour, religion, sex, national origin, handicap, or age, and to promote the full realisation of equal employment opportunity through a continuing affirmative program in each executive department and agency”. A landmark ruling in the matter came in 1978, in the Regents of the University of California versus Bakkecasewhen the Supreme Court ruled that schools could not use affirmative action to rectify historical racial discrimination, but that they could weigh race as one of the many factors in admissions.

What does the judgment say?

The June 29 judgment of the U.S. Supreme Court says that admission programmes of both Harvard College as well as the UNC lack measurable objectives that would validate the use of race as a criterion. The court judgment also added that both these admission programmes “unavoidably” use race in a negative manner, and hence do not serve the guarantees of the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution.

What is the Equal Protection Clause?

The Fourteenth Amendment of the U.S. Constitution addresses citizenship issues and the rights of citizens. The Equal Protection Clause, under the Fourteenth Amendment, requires the government to accord equality to all citizens and avoid denial of protection enjoyed by other people or demographics. The Equal Protection clause is considered crucial to the protection of citizens’ civil rights.

Was race a factor for college admissions?

According to Harvard, around 40% of U.S. colleges and universities consider race in some fashion, Reuters reported. The current judgment states that admissions applications at Harvard College are assigned a numerical score in six categories — academic, extracurricular, athletic, school support, personal and overall — during its initial screening. “Overall” is composite of five other ratings and can include the applicant’s race as a factor. UNC also has a similar process — the admissions office assigns a numerical rating to the applicant based on several categories, and race is considered a factor in the review.

What will be the impact of the decision?

This is not the first time that affirmative action has been declared unlawful for U.S. colleges. The State of California, for example, banned affirmative action in 1996 in public universities. Acting as amicus curiae in the recent case, the President and Chancellors of the University of California (UC) informed the Supreme Court that despite their extensive efforts, they have struggled to enrol a racially diverse student body into its programmes. The amicus curiae also said that since 1996, “freshmen enrollees from underrepresented minority groups dropped precipitously at UC, and dropped by 50% or more at UC’s most selective campuses”.

Opinion | Striking a blow against affirmative action in America

A study published in 2020 analysed long-run changes in the racial and ethnic composition of selected universities, including those in California, Washington, Florida, Arizona, Michigan, Nebraska, New Hampshire and Oklahoma after affirmative action was banned in these states. The study found that the ban led to steady declines in the share of underrepresented minorities among students in flagship universities in these states.

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