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In a ruling on two related cases on Thursday written by Chief Justice John Roberts, the Supreme Court just ended affirmative action in higher education as we know it.
The two cases — Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina — both argued that the use of race in college admissions should end, but for slightly different reasons. In the Harvard case, the plaintiffs claimed that the admissions practices of Harvard discriminated against Asian American applicants by placing a cap on the number admitted. In the North Carolina case, the plaintiffs asked the court to rule that universities can’t use race as a factor in college admissions and must use a race-neutral approach, which they argued can achieve student-body diversity.
The court — with the six Republican-appointed justices on one side and the three Democratic-appointed justices on the other — agreed that Harvard’s practices resulted in fewer Asian American applicants being admitted. And they found that the practices of both colleges violated the equal protection clause of the 14th Amendment. Roberts echoed earlier rulings where he and other conservative justices stressed that the Constitution requires a colorblind reading, making any consideration of race wrong. “Eliminating racial discrimination means eliminating all of it,” he wrote.
The justices in the minority did not accept that interpretation — to put it mildly. In her dissent, Justice Ketanji Brown Jackson excoriated the court for failing to address the “gulf-sized race-based gaps” in American life, and criticized the idea that using race as a factor in holistic admissions is unfair. “This contention blinks both history and reality in ways too numerous to count.” she wrote. “But the response is simple: Our country has never been colorblind.”
And although it’s a quiet — not explicit, but functional — reversal of more than 50 years of precedent, this decision might actually be popular. A poll designed to capture public opinion on major Supreme Court decisions this term found that strong majorities of Americans agree that public (74 percent) and private (69 percent) colleges and universities should not be able to use race as a factor in college admissions. Questions that remind respondents of the goal of affirmative action — to increase the numbers of Black, Hispanic and other underrepresented students on elite campuses — tend to generate more support. But people also don’t think minority groups should be given “special preferences.”
The purpose of the affirmative action program under consideration by the court, which traces back to an executive order by President Lyndon B. Johnson, was to increase the representation of women and minorities in a number of American institutions as a way to correct for historical discrimination. Individual programs have been struck down over the years, by voter referendum in Michigan in 2006 and limited by a decision by the University of California regents in 1995. But in 2003, the Supreme Court ruled that schools could consider race in admissions to promote diversity, and upheld that practice in 2016 . (Edward Blum, a conservative activist who opposes affirmative action, was behind the 2016 case as well as this year’s two.)
It’s hard to predict with certainty how Americans will respond to the Supreme Court’s reversal, because as we’ve written before, how Americans view affirmative action depends a lot on how they’re asked about it. By one measure, affirmative action is more popular among white Americans than it used to be: According to Gallup, only 44 percent of white Americans favored affirmative action (broadly speaking, not specific to college admissions), for members of racial minority groups in 2001. Twenty years later, 57 percent of white Americans in the Gallup survey said they favored it. Hispanic adults saw a slightly greater increase, from 64 to 79 percent. Yet for Black Americans, the number began at 69 percent, increased over the years, and then settled back at 69 percent in 2021.
But a Pew Research Center Survey conducted in the spring found that affirmative action is not popular today, particularly among white respondents, people without college degrees and Republicans. Overall, half of Americans disapproved of colleges and universities using race and ethnicity as factors to increase racial and ethnic diversity, while one-third approved. (The remaining 16 percent said they were not sure.) But three-quarters (74 percent) of Republicans and Republican-leaning independents disapproved, while a little over half (54 percent) of Democrats and Democratic-leaning independents approved. Almost half of Black respondents supported it, the highest of any racial or ethnic group. College graduates are virtually evenly split on whether they approve or disapprove, while those without college degrees disapprove by a nearly two-to-one ratio.
Part of the problem is that Americans may be genuinely conflicted — or even confused — about what banning affirmative action in higher education would mean. Two recent polls found that majorities of Americans want affirmative action programs to continue. But one of those polls, conducted by YouGov/CBS, also asked whether respondents thought race should be considered as part of college admissions, and got a resoundingly different answer: only 30 percent said yes, and 70 percent said no.
Some people may oppose affirmative action because they prefer a color-blind reading of the constitution, and think any consideration of race makes the process inherently problematic. A New Public Agenda/USA Today/Ipsos Hidden Common Ground poll, fielded in February and March 2023, found that majorities of Americans prefer institutions to equally distribute resources to all communities rather than make additional investments in Black, Latino, Asian and Native American communities to close gaps. Sixty-three percent of respondents said racism makes it more difficult for people of color to succeed in the U.S., but more Americans said individuals should play a role in overcoming racism than said institutions like the government and schools should. The study found that Americans are split on whether efforts to combat racism would affect white people, with 44 percent saying those efforts make life more difficult and 45 percent saying they do not, with the remainder saying they did not know.
Some Americans also don’t believe that systemic racism is a problem in American life. In another Pew survey from 2021, 77 percent of Republicans thought that little or nothing needed to be done to ensure equal rights for all Americans. Other surveys have found Republicans skeptical of systemic racism, which suggests some do not believe the justification for affirmative action is a problem in need of addressing. Some Americans also believe affirmative action programs are harmful to white people.
But there are also a sizable number of Americans who don’t hold firm views on affirmative action, as evidenced by the policy’s struggles at the ballot. A 2020 referendum that would have restored race-conscious affirmative action in public universities in California, one of the most liberal and diverse states in the nation, failed when 57 percent of statewide voters opposed it. According to a New York Times analysis, the vote passed 51 to 49 in Los Angeles County, among the state’s more Democratic areas, suggesting that it’s not a voting issue for many voters and that support is slim.
While overturning Roe v. Wade led to successful referendums across the country, these affirmative action cases might not have the same effect. Attitudes on it are even more complex than those on abortion, and traditionally civil rights groups have relied on the courts to ensure racial justice. This ruling undoes decades of efforts by those groups to advocate for a college admissions process that tries to provide a solution for race-based harms — and right now, most Americans might think that’s the right thing to do.
