The US Supreme Court ended affirmative action on Thursday, in a landmark decision that left colleges and universities bumping into walls looking for ways to improve and promote diversity.

The conservative justices ruled that admissions policies at Harvard University and the University of North Carolina violated the US Constitution’s equal protection clause in the landmark case. 

This effectively bans the use of affirmative action policies, effective since 1961, which was meant to increase the number of Black, Hispanic and underrepresented minority students at selective US higher education colleges and universities.

According to the court, Harvard and the University of North Carolina did not abide by the restrictions laid out which state that university programs “must comply with strict scrutiny, may never use race as a stereotype or negative, and must – at some point – end”.

Benefits at the expense of others 

The first Black woman on the Supreme Court, Ketanji Brown Jackson, issued a statement condemning the ruling, saying that it would “take longer for racism to leave us”.

In response, US President Joe Biden claimed he was considering executive action and will request the Department of Education to find ways to maintain diversity in university student bodies, as he called the court "not a normal” one.

“Discrimination still exists in America. Today’s decision does not change that. It’s a simple fact," he said.

Student record data analysis by the conservative Students for Fair Admissions, representing Asian American students in the lawsuit against Harvard, discovered that it rated Asian American students lower in personality and likability ratings than others.

Seth Waxman, Harvard’s attorney, argued that Asian Americans are not discriminated against and stressed that the university considered multiple factors in its admissions process.

The court ruled that the universities’ reasons for using race as a factor to improve diversity “fail to articulate a meaningful connection between the means they employ and the goals they pursue”.

Chief Justice John Roberts claimed that Harvard’s program caused fewer Asian American students to be admitted, violating the Equal Protection Clause’s standard that “race may never be used as a “negative”.

“Yet by accepting race-based admissions programs in which some students may obtain preferences on the basis of race alone, respondents’ programs tolerate the very thing that Grutter foreswore: stereotyping", he said. 

“Respondents’ assertion that race is never a negative factor in their admissions programs cannot withstand scrutiny,” he continued, adding, “College admissions are zero-sum, and a benefit provided to some applicants but not to others necessarily advantages the former at the expense of the latter.”

'Ignoring race will make it matter more'

The Supreme Court just ruled that no American should be denied educational opportunities because of race.

Now students will be able to compete based on equal standards and individual merit. This will make the college admissions process fairer and uphold equality under the law.

— Kevin McCarthy (@SpeakerMcCarthy) June 29, 2023

The court commented that race in students' applications could still be discussed but that universities “wrongly concluded” that “the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned, but the color of their skin”.

The court argued that the universities’ goal of using race-conscious admissions until “meaningful representation and meaningful diversity” is achieved lacked a “logical endpoint” and left more unconstitutional “racial balancing”.

Affirmative action was first challenged in 1978, when a white man, Allan Bakke, was denied admission to the University of California at Davis medical school, after which the court concluded that race could be factored into the admissions process, but it stopped colleges from setting racial quotas.

Then in 2003, in Grutter v Bollinger, higher education institutions were allowed to factor in race to achieve diversity because it represented a “compelling governmental interest”, according to the Supreme Court. 

Justice Sandra Day O’Connor wrote back then in a majority opinion that “25 years from now, the use of racial preferences will no longer be necessary.”

In 2016, the US supreme court voted by a narrow margin to uphold race-conscious admissions in a case by Abigail Fisher, a white woman denied admission to the University of Texas at Austin.

“Although formal race-linked legal barriers are gone, race still matters to the lived experiences of all Americans in innumerable ways, and today’s ruling makes things worse, not better," Justice Ketanji Brown Jackson said, adding: “.... ultimately, ignoring race just makes it matter more.”

Justice Sonia Sotomayor also issued a dissent statement that the ruling would “entrench segregation in higher education.”