The U.S. Supreme Court ruled in a 6-3 decision Thursday that race-conscious college admissions policies at Harvard University and the University of North Carolina at Chapel Hill violate the 14th Amendment.
The decision could impact the pipeline of high school students into postsecondary education in the immediate future — and could eventually affect how elementary and secondary schools approach diversity efforts.
The case arose almost a decade ago in 2014, after an anti-affirmative action group, Students for Fair Admissions, or SFFA, sued Harvard University and the University of North Carolina at Chapel Hill over the institutions’ race-conscious admissions policies.
SFFA argued UNC-Chapel Hill favored Black and Hispanic applicants, intruding on the 14th Amendment’s guarantee to equal protection under the law. Separately, the group alleged that Harvard discriminated against Asian American applicants in violation of federal law.
In the majority opinion, Supreme Court Chief Justice John Roberts seemed to agree. "Eliminating racial discrimination means eliminating all of it," he wrote, calling acceptance of race-based state action "rare."
Thursday's decision blocking race-conscious admissions will only affect a small segment of colleges, as most institutions accept a majority of applications. However, higher ed leaders have expressed concerns about the message it sends to historically marginalized students.
Roberts clarified in Thursday's opinion that "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."
But, he added, "universities may not simply establish through application essays or other means the regime we hold unlawful today."
Conservatives on the high court signaled their skepticism of race-conscious policies during oral arguments in October, questioning when they could wind down. The justices repeatedly referenced a majority opinion in a landmark 2003 admissions case, Grutter v. Bollinger, in which the Supreme Court preserved race-conscious practices at the University of Michigan.
In that opinion, former Justice Sandra Day O’Connor had predicted race-conscious policies would be unnecessary in 25 years. However, many scholars consider this an overly optimistic take on race in the country and have said it was not a hard deadline.
The Supreme Court last ruled on race-conscious policies in 2016.
Impact on K-12
The Supreme Court decision could eventually impact K-12 programs that are attempting to diversify student participation in selective activities, such as magnet schools and gifted classes, and in their efforts to address equity in grading, discipline and other voluntary practices.
Some district-operated magnet schools, which were historically created as part of desegregation efforts to attract a diverse student body, have faced recent legal and political pressures to adopt more racially balanced practices or to ensure admission practices do not discriminate against any racial group.
Current guidance from the U.S. Department of Education in regard to district grants for magnet schools says districts with a voluntary desegregation plan must consider how it will reduce, eliminate or prevent the "racial isolation of students from one or more minority groups in schools where there are substantial proportions of minority students."
The Education Department recently announced it will update regulations for the Magnet Schools Assistance Program to help districts establish and operate magnet schools using strategies "that have been shown to both increase diversity and improve outcomes for students," according to a federal announcement.
Supporters of K-12 diversity efforts for selective programs say these actions level the playing field for historically marginalized students.
In her dissent, Associate Justice Sonia Sotomayor agrees with that theory, saying the 14th amendment "enshrines a guarantee of racial equality."
"The Court long ago concluded that this guarantee can be enforced through race-conscious means in a society that is not, and has never been, colorblind," she added. Associate Justices Elena Kagan and Ketanji Jackson agreed.
Those in favor of eliminating race-based practices, however, say certain diversity practices discriminate against White or Asian students and that K-12 admission policies should not pit one student racial group against each other, according to lawsuits.
An ongoing legal battle against admission policies at Virginia's Thomas Jefferson High School for Science and Technology highlights this debate. Fairfax County Public Schools, which oversees the school's operations, altered its admissions policy for the highly selective public school in 2020 after data showed disproportionately low acceptances for Black and Latino students.
Changes to the admissions process included removing a standardized test and adding consideration of an "experience factor," such as being low-income, an English learner or a student with disabilities. In reviewing applications, school admissions officials take a race-neutral approach and are not allowed to attempt to reach any racial targets.
A district news release last year said data for the prospective class of 2026 showed the school was on a "good path" to becoming accessible to students from all backgrounds. Court records submitted by opponents of the new admissions policy show that acceptances fell for Asian-American students after the admissions policy change.
Similar legal challenges have caused school districts elsewhere in the country to retreat from race-conscious initiatives. As a result, those districts are experiencing growing racial segregation, said a February paper from the Learning Policy Institute. The institute promotes enrollment practices that are inclusive, such as lotteries, rather than competitive admission practices.
As the Supreme Court affirmative action case advanced, several organizations and individuals provided input.
A friend-of-the-court brief from the Council of the Great City Schools, a coalition of 76 of the nation’s largest urban public school systems, urged the court to keep precedent, saying race-conscious policies are necessary to create diverse enrollments that benefit all students.
"Because of unequal economic and educational opportunities, African American and Hispanic students suffer from educational outcomes at the elementary and secondary level that often do not fairly reflect their academic potential," the council said.
Segregation in education, the council added, leads to academic inequity and racial and ethnic achievement gaps.
Although the cases before the Supreme Court did not directly address race-conscious K-12 student assignments, the council said the use of narrowly tailored race-conscious practices at the elementary and secondary school levels "remains a necessary tool."
The National School Boards Association and several other K-12 administration organizations also filed an animus brief in support of the colleges at the center of the Supreme Court ruling.
But another amicus brief in support of the petitioner, filed by several former U.S. Department of Education officials who served during the Trump administration, explains how race-conscious educational approaches have shifted depending on whether there is a Republican or Democrat president. Those different approaches have resulted in inconsistent guidance and enforcement practices, and the former officials urged the court to end the "whiplash" of policies.
"The fact of the matter is that the Supreme Court’s case law in the area of race-conscious education policy offers significant ambiguity to students and schools throughout the country, so much so that depending on the presidential administration in power, OCR [the Office for Civil Rights] will offer diametrically opposed policy guidance, public facing statements, and even case findings implicating a school’s receipt of federal funds," the former officials said.
Implications for college applications, testing, teacher workforce
The Supreme Court ruling will also affect the college admission landscape, including potentially how high school students view the college application process and how schools guide them through it.
An American Civil Liberties Union FAQ from October 2022 said a decision preventing consideration of race in college admissions "will almost certainly mean a significant drop in the number of students of color being admitted to selective universities."
There may be other implications as well.
The National Center for Fair and Open Testing, also known as FairTest, said eliminating affirmative action could further decrease the number of colleges that require standardized tests, such as the SAT and ACT, for admissions. A recent analysis by the group, which advocates for limited use of admissions tests, said more than 1,900 U.S. four-year colleges won't require the ACT and SAT for the fall 2023 application cycle. There were 2,278 bachelor degree-granting or higher colleges in 2020-21, according to the National Center for Education Statistics.
“Admissions offices increasingly recognize that test requirements, given their negative disparate impact on Black and Latinx applicants, are ‘race-conscious’ factors, which can create unfair barriers to access higher education,” said FairTest Executive Director Harry Feder in a June 7 email.
Another concern from supporters of race-conscious admissions is that a retreat could negatively impact efforts to build a more diverse teacher workforce. U.S. Department of Education data from 2018-19 shows participants in teacher preparation programs were underrepresented across multiple racial backgrounds compared to the K-12 student population.
Monika Williams Shealey, board chair of the American Association of Colleges for Teacher Education, told K-12 Dive in April that a Supreme Court ruling against race-based admissions would add another barrier for prospective teachers of color in addition to roadblocks they already face.
Still, opponents say affirmative action gives unequal protections under the Constitution and that admission practices should be based on student merit.
"Affirmative action does not solve the problem of why members of some groups fall behind academically. It does not address failing public schools, worsening socioeconomic and family formation issues, or high out-of-wedlock birth rates that hold people down," said Mike Gonzalez, the Angeles T. Arredondo E Pluribus Unum Senior Fellow at the Heritage Foundation, in an October statement.