Affirmative action: Supreme Court justices clash over 'colourblind' America

Justice Ketanji Brown Jackson issued a scathing dissent

The US Supreme Court has ruled that the Constitution prohibits American universities from considering the race of applicants as part of its admissions process.

The court once again has divided sharply on ideological lines. The six conservative justices in the majority heralded the decision as a step toward a more colourblind society, where students will be measured by their accomplishments, not their race. The three liberals condemned the ruling, arguing that it ignored the ongoing reality of discrimination in America.

The sweeping decision applies to every university, public and private, across the US. But it is the prestigious Ivy League institutions like Harvard, where tens of thousands of applicants compete for hundreds of spots a year, that could be affected the most by the ruling.

The court did not say it was directly overruling a 20-year-old legal precedent that universities could consider race as a factor in a holistic effort to create a diverse student body. But University of Texas law professor Steve Vladeck says the effect will be just as significant.

"The decision goes a lot farther than the court really wants you to believe," he says. "For all intents and purposes, it makes it virtually impossible for colleges and universities to continue to take race into account."

Why was affirmative action ruled discriminatory?

In his majority opinion, Chief Justice John Roberts drew a direct line from the landmark court 1954 case Brown v Board of Education, which ended segregation in education, to this opinion on college admissions.

"Eliminating racial discrimination means eliminating all of it," the chief justice wrote.

He said that universities could not have an open-ended timeline for addressing past discrimination, and dismissed the explanations that Harvard and the University of North Carolina used to justify their policies as unfocused, discriminatory and tied to racial stereotypes.

• Supreme Court overturns race-based college admissions

• Why this teen says he was rejected by top US colleges

The lawsuit against Harvard had been brought by a group of Asian-American students that claimed the university's admissions policy discriminated against them by downplaying their academic achievement and high test scores.

The chief justice agreed, writing that college decisions must be granted based on an applicant's experiences and qualifications as an individual.

"Many universities have for too long done just the opposite," he wrote. "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 colour of their skin. Our constitutional history does not tolerate that choice."

It is yet another reflection of a court that is flexing its muscle on major social and political issues that had been addressed by previous court precedent. Last year, the court struck down long-standing protections for abortion and the environment. Now, the conservative justices targeted university admissions.

What did liberal justices say in scathing dissents?

The three justices appointed by Democratic presidents condemned the rulings in two separate dissents that spanned nearly 100 pages in total.

The ruling, wrote Justice Sonia Sotomayor, "cements a superficial rule of colourblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter". She warned it "rolls back decades of precedent and momentous progress".

Justice Ketanji Brown Jackson - the first black woman ever to sit on the court - went further: "With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces 'colourblindness for all' by legal fiat. But deeming race irrelevant in law does not make it so in life."

"And having so detached itself from this country's actual past and present experiences," she added, "the court has now been lured into interfering with the crucial work that [the University of North Carolina] and other institutions of higher learning are doing to solve America's real-world problems."

What happens next?

While the court's decision applies to universities across America, nine states have already taken steps to prohibit the consideration of race in their public college admissions process. Their results may give an indication of the sweeping changes that are to come.

California, for example, prohibited "preferential treatment" on the basis of race in all government programmes, including public education, a quarter of a century ago.

Although there was an immediate drop in minority representation across the University of California system, efforts to increase diversity through other means have been effective. UCLA currently admits a higher percentage of black and Hispanic students than it did before the affirmative-action ban went into effect.

The Supreme Court, in its opinion, said that applicants can still cite their race and discuss how it "affected his or her life, be it through discrimination, inspiration, or otherwise". And universities could find proxies for race - such as economic disadvantage or geographic origin - to build a diverse student body.

How universities may go about doing that, however, could vary from state to state, based on local politics and conservative laws that are being passed in Republican "red states" to prohibit university diversity outreach and engagement programmes that schools in California have utilised.

"The reality is this guts affirmative action as we've known it," Mr Vladeck says. "But it leaves open a crack in the door for universities, especially in blue [liberal] states, to try to find other means of promoting diversity and achieving diversity in their income classes."

As of today, however, any policies with a tinge of racial consideration could prompt a new lawsuit and more headaches for university officials. The court's opinion in this case makes that much very clear.