WASHINGTON (WCMH) – In a two-punch combo, the nation’s highest court has dealt a fatal blow to affirmative action in college admissions.

A pair of Supreme Court decisions handed down Thursday declare colleges’ and universities’ use of race in admissions processes – no matter how narrowly tailored – unconstitutional. The cases demolish a two-decade precedent and mark the end of the weakening deference the court has given to academic institutions to craft diversity-oriented admissions policies.

In two lawsuits filed nearly a decade ago, the nonprofit Students for Fair Admissions argued that anti-discrimination constitutional provisions and federal statutes require “race-neutral” admissions policies. In an opinion written by Chief Justice John G. Roberts, the Supreme Court found that considering race as a factor in college admissions violated the U.S. Constitution’s 14th Amendment. Justices Sonia Sotomayor, Elena Kagan and Ketanji Jackson dissented in both cases.

“Eliminating racial discrimination means eliminating all of it. Accordingly, the Court has held that the Equal Protection Clause applies ‘without regard to any differences of race, of color, or of nationality’—it is ‘universal in [its] application,'” the opinion stated.

While Jackson joined in filing dissent, she recused herself from the decision-making process in the Harvard case, having served on the university’s board of overseers until last spring. But she addressed the UNC case in a dissenting opinion, in which she and Justices Sonia Sotomayor and Elena Kagan highlighted the “transformative legacy” of the court’s 1954 opinion in Brown v. Board of Education – a watershed ruling that recognized the importance of racially integrated schools.

For 45 years, universities’ limited use of race has helped equal the educational playing field while promoting Brown’s vision of a nation “with more inclusive schools,” Justice Sotomayor wrote for the dissent. She emphasized both universities’ assertions that using only race-neutral factors – like socioeconomic status or geographic region of origin – would not achieve sufficient levels of racial and ethnic diversity

“Today, this Court stands in the way and rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits,” the dissent read. “In so holding, the Court cements a superficial ruling of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.” 

View the Supreme Court’s opinion document in its entirety by clicking here.

But on Tuesday the court abandoned its precedent, with Chief Justice Roberts emphasizing an opinion popular among the court’s conservative justices that the affirmative action policies have an expiration date – and it has since passed.

In his opinion, Roberts harkened to Thomas’ opinions in other affirmative action cases, in which he has routinely asserted that race-conscious admissions practices, including those at Harvard and UNC, were “categorically prohibited” by the Equal Protection Clause of the 14th Amendment.

“Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points,” the court’s majority wrote. “We have never permitted admissions programs to work in that way, and we will not do so today.”

Students for Fair Admissions – an anti-affirmative action group headed by conservative legal strategist Edward Blum – targeted race-conscious admissions policies employed by the nation’s oldest public and private universities: the University of North Carolina and Harvard University. Both universities defended their use of race as one part of “holistic” and “individualized” review processes, following the standard most recently articulated by the court in the 2016 case Fisher v. University of Texas – a case challenging affirmative action policies whose plaintiff was recruited to sue by Blum.

Over the course of two bench trials, lower courts ruled that both universities’ policies properly adhered to precedent established in Grutter v. Bollinger that achieving student body diversity is a compelling government interest. The 2003 case affirmed that when narrowly tailored, admissions policies that use race as a factor in decisions can satisfy the court’s most stringent test for discrimination cases.

A court’s thorough review of UNC’s admissions decisions, for example, found that race was the “deciding factor” in less than 1.5% of admissions. And the lower courts found no evidence that Harvard’s admissions policies penalized Asian American applicants because of their race, something Students for Fair Admissions argued violated Title VI of the Civil Rights Act.

The decision did not come as a surprise for legal experts and Supreme Court watchers, given the strong six-person majority conservative justices command. But the constitutionality of affirmative action policies was always on shaky ground, said Lawrence Baum, professor emeritus of political science at Ohio State University whose research focuses on the Supreme Court and federal judiciary.

Three of the court’s conservative justices – Roberts, Clarence Thomas and Samuel Alito – were on the court when Fisher was decided, with liberal Justice Elena Kagan voting with the conservatives but not joining any of their dissents. Previous affirmative action cases before the Supreme Court have been decided by narrow majorities — 5-4 in Grutter and 4-3 in Fisher, for instance — that often relied on the decisive vote of a traditionally conservative justice.

“The idea of accepting some affirmative action cases has always hung by a thread,” Baum said. “It’s almost like it’s been happenstance that there’s always been just enough justices saying that some forms of affirmative action in education are acceptable to maintain the court’s decision all this time.”

The vitality of maintaining court precedent was something both universities argued, appealing to the jurisprudential philosophy that stability is important to the legitimacy of the court. Baum said many point to the overruling of Roe v. Wade as evidence the court has abandoned the concept of upholding precedent, but in some ways, it is neither unique nor new.

Although the current court has ruled against precedent in high-profile cases, Baum pointed out that the Roberts court has overturned fewer cases than the liberal Warren Court did in the mid-20th century.

“At least since around 1960, when the court began to overrule precedent in large numbers, I think that the justices by and large have just assumed that if they see a precedent as basically wrong, it’s allowable, it’s appropriate to overrule it,” Baum said.

With the striking down of race-conscious admissions programs comes waves of uncertainty splashing beyond the realm of higher education. Baum said he wouldn’t be surprised if other areas where the government differentiates based on race — like programs aimed to redress systemic racism, such as the Biden administration’s failed plan to prioritize debt relief for Black farmers — will come under fire with the power of Tuesday’s court rulings behind those challenges. And with Title VI impacting private entities, businesses with diversity-boosting goals may face threats to DEI initiatives.