Six Tory judges voted to repeal the measures intended to encourage diversity and end decades of segregation.
The end of the actions resulting from the struggle for civil rights in the US? A year after repealing the constitutional right to an abortion, the US Supreme Court on Thursday, June 29, shut down college positive discrimination programs based on the race or race of candidates. Six conservative judges voted to overturn the measures, saying they violate the equality clause of the Fourteenth Amendment to the United States Constitution. On the contrary, three progressive judges defended these positive discrimination measures aimed at improving the representation of minorities in educational institutions and in the labor market.
1 What were these measures?
In the 1960s, amid civil rights struggles, American universities began implementing programs aimed at improving student diversity and eliminating decades of segregation. For example, as the American website Vox explains, the institutions have started recruiting more black students from high schools, which those universities have so far ignored. Therefore, positive discrimination policies related to racial identity have existed on the other side of the Atlantic for more than 50 years.
In 1978, Regents of the University of California v. Bakke led to a Supreme Court ruling on affirmative action. It ruled that racial identity, among other criteria, could be considered in admissions processes, a quota system that excludes applicants on the basis of racial identity but constitutes discrimination, explains the Cornell University School of Law.
Not all American universities necessarily consider the race of their applicants when making admissions decisions, Vox recalls. Nine American states, including California, Florida, Michigan and Washington, had already banned any form of racist consideration in university admissions.
2What did the judges decide?
The Supreme Court ruled on two complaints filed in 2014 by the organization Students for Fair Admissions against Harvard University and North Carolina University. As the website Vox points out, this campaign was spearheaded by white conservative Edward Blum, who filed more than twenty complaints – specifically against affirmative action measures.
In the lawsuit filed against Harvard, Students for Fair Admissions alleges that the university discriminates against young Asian Americans through its selection policies that take into account the racial identity of applicants. The allegations against the University of North Carolina are similar: For the organization, these measures give preference to certain minorities, in particular in favor of black and Hispanic candidates.
The highest American legal authority agreed with them. “The student should be treated on the basis of his experience as an individual, not on the basis of his racial identity,” Supreme Court Justice John Roberts said in the U.S. highest court’s decision.
“Many universities have for too long (…) wrongly concluded that the cornerstone of an individual’s identity is not the challenges they have overcome, the skills they have acquired, or the insights they have gained, but the color of their skin.”
John Roberts, President of the Supreme Court
in the decision
In its verdict, the institution recalls that it approved the admission on the basis of racist criteria “within narrow restrictions”. In the eyes of the conservative judges, the positive discrimination measures taken by the universities mentioned were “well intentioned”, but they disregarded these restrictions and had to be abolished.
3What were the effects of positive discrimination?
Between 1976 and 2008, the proportion of black students in undergraduate enrollment increased from 10 percent to 13.9 percent, according to the National Center for Education Statistics. Hispanic student enrollment increased from 3.7% to 12.9% over the same period, and Native American from 0.7% to 1.1%.
However, The New York Times showed in 2017 that affirmative action measures in the most prestigious institutions had limited impact. According to the daily’s analysis, the proportion of black freshman students at a number of elite universities has changed little since 1980. In the mid-2010s, they made up 6% of freshman students. but 15% of college-age Americans. The proportion of Hispanic college entrants has increased more, but not at the same rate as the demographics of this population.
In states that have banned positive discrimination, according to a recent study* cited by Vox, “there is a continuing decline in the proportion of underrepresented minorities among students admitted and enrolled in leading public universities.” Take California, for example, where the University of California, Berkeley had only 3% black students in 2017, up from 6% in 1980. The scenario was repeated at the University of Michigan: in 2021, 4% of black undergraduate students were enrolled , up 7% in 2006, reports the New York Times.
4What can universities do now?
In the Supreme Court decision, Justice John Roberts clarified that “nothing in this notice should be construed as prohibiting universities from considering an applicant’s comments about how racial identity has affected his or her life.” So universities could take advantage of this opening, and Harvard has already stated its intention to do so.
As pointed out by Vox, facilities could also decide to no longer require results in their approval processes for certain tests. They could also continue to ensure socio-economic diversity in their workforce, which would allow representation of often less privileged minorities to be sustained.
However, these alternatives are likely to be less effective than clear affirmative action measures. Studies cited by Vox show that white students are twice as likely to attend a chosen university as black students, regardless of income level.
5What are the political reactions?
US President Joe Biden has expressed his “deep disagreement” and “disappointment” with the Supreme Court ruling. “We can’t let her have the last word,” he pleaded. “Today’s decision will affect our country for decades to come,” said Kamala Harris, Vice President of the United States, speaking of “a step backwards for our nation.”
In the Republican camp, which is far more critical of affirmative action, former President Donald Trump called it “a great day for America” because “we’re going back to a benefits system.” “Candidates should not be judged on their racial or ethnic identity,” said Republican Florida Gov. Ron DeSantis, another candidate for the 2024 presidential election.