By Andrew Chung and John Kruzel
(Reuters) – The U.S. Supreme Court on Thursday struck down race-conscious student admissions programs at Harvard University and the University of North Carolina in a sharp setback to affirmative action policies often used to increase the number of Black, Hispanic and other underrepresented minority groups on campuses.
The justices ruled in favor of a group called Students for Fair Admissions, founded by anti-affirmative action activist Edward Blum, in its appeal of lower court rulings upholding programs used at the two prestigious schools to foster a diverse student population.
The decision, powered by the court’s conservative justices with the liberal justices in dissent, was 6-3 against the University of North Carolina and 6-2 against Harvard. Liberal Justice Ketanji Brown Jackson did not participate in the Harvard case.
In major rulings last year also spearheaded by the conservatives justices, the court overturned the 1973 Roe v. Wade decision that had legalized abortion nationwide and widened gun rights in a pair of landmark rulings.
Chief Justice John Roberts, writing for the majority said, “Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause,” referring to the U.S. Constitution’s promise of equal protection under the law.
Roberts said that students “must be treated based on his or her experiences as an individual not on the basis of race. Many universities have for too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice.”
“At the same time,” Roberts said, “as all parties agree, 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.”
Many institutions of higher education, corporations and military leaders have long backed affirmative action on campuses not simply to remedy racial inequity and exclusion in American life but to ensure a talent pool that can bring a range of perspectives to the workplace and U.S. armed forces ranks.
Liberal Justice Sonia Sotomayor said in a dissent that the decision “subverts” the constitutional guarantee of equal protection and further entrenches racial inequality in education. “Today, this Court stands in the way and rolls back decades of precedent and momentous progress,” she wrote in a dissent joined by Jackson and Liberal Justice Elena Kagan.
Sotomayor added, The “court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.”
Blum’s group in lawsuits filed in 2014 accused UNC of discriminating against white and Asian American applicants and Harvard of bias against Asian American applicants.
Students for Fair Admissions alleged that the adoption by UNC, a public university, of an admissions policy that is not race neutral violates the guarantee to equal protection of the law under the Constitution’s 14th Amendment.
The group contended Harvard, a private university violated Title VI of a landmark federal law called the Civil Rights Act of 1964, which bars discrimination based on race, color or national origin under any program or activity receiving federal financial assistance.
According to Harvard, around 40% of U.S. colleges and universities consider race in some fashion.
Affirmative action had withstood Supreme Court scrutiny for decades, most recently in a 2016 ruling involving a white student, backed by Blum, who sued the University of Texas after being rejected for admission.
The Supreme Court has shifted rightward since 2016 and now includes three justices who dissented in the University of Texas case and three new appointees by former Republican President Donald Trump.
Harvard and UNC have said they use race as only one factor in a host of individualized evaluations for admission without quotas – permissible under previous Supreme Court precedents – and that curbing its consideration would cause a significant drop in enrollment of students from under-represented groups.
Critics, who have tried to topple these policies for decades, argue these policies are themselves discriminatory.
The United States is a nation that long has struggled with issues of race, dating back to its history of slavery of Black people that ended only after a Civil War, the civil rights movement of the 1950s and 1960s and in recent years racial justice protests that followed police killings of Black people.
Reaction to the ruling was swift.
“The Supreme Court ruling has put a giant roadblock in our country’s march toward racial justice,” said Democratic U.S. Senate Majority Leader Chuck Schumer in a statement.
“Affirmative action is systemic discrimination,” Republican Senator Tom Cotton wrote on Twitter. “I’m thankful the Supreme Court held this discrimination violates the constitution. Admissions should be decided on merit – not by color of skin.”
Many U.S. conservatives and Republican elected officials have argued that giving advantages to one race is unconstitutional regardless of the motivation or circumstances. Some have advanced the argument that remedial preferences are no longer needed because America has moved beyond racist policies of the past such as segregation and is becoming increasingly diverse.
The dispute presented the Supreme Court’s conservative majority an opportunity to overturn its prior rulings allowing race-conscious admissions policies.
Lower courts rejected the group’s claims, prompting appeals to the U.S. Supreme Court asking the justices to overturn a key precedent holding that colleges could consider race as one factor in the admissions process because of the compelling interest of creating a diverse student body.
(Reporting by Andrew Chung in New York; Editing by Will Dunham)
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