Supreme Court rules against affirmative action at Harvard and UNC

June 29, 2023 • 9:45 am

You didn’t have to be a genius to predict this one, especially if you paid attention to the Justice’s statements during the hearing. By a vote of 6-3, and strictly along political-spectrum lines, the Supreme Court struck down race-bace admissions at Harvard and the University of North Carolina. The three dissenting justices were Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor, with the majority including Chief Justice John Roberts and associate justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

Click to read, though I found a partial version of the article archived here. It’ll be interesting to read the full decision, to which there’s a link below.

The Supreme Court on Thursday ruled that the race-conscious admissions programs at Harvard and the University of North Carolina were unlawful, curtailing affirmative action at colleges and universities around the nation, a policy that has long been a pillar of higher education.

The vote was 6 to 3, with the court’s liberal members in dissent.

The decision was expected to set off a scramble as schools revisit their admissions practices, and it could complicate diversity efforts elsewhere, narrowing the pipeline of highly credentialed minority candidates and making it harder for employers to consider race in hiring.

More broadly, the decision was the latest illustration that the court’s conservative majority continues to move at a brisk pace to upend decades of jurisprudence and redefine aspects of American life on contentious issues like abortion, guns and now race — all in the space of a year.

The decisions, though coming down to the same thing, apparently differ in the methods that the judges saw as discriminatory.  UNC didn’t use the “holistic” admissions procedure at Harvard, which the school defended vehemently (as did two appellate courts), but which used bogus “likeability” scores to discriminate against Asian Americans. (That these were mendacious was revealed by showing that the lower scores of Asians were given only by admissions officers who hadn’t met the applicants, not by those who actually interviewed them in person.)

The two cases were not identical. As a public university, U.N.C. is bound by both the Constitution’s equal protection clause and Title VI of the Civil Rights Act of 1964, which bars race discrimination by institutions that receive federal money. Harvard, a private institution, is subject only to the statute.

In the North Carolina case, the plaintiffs said that the university discriminated against white and Asian applicants by giving preference to Black, Hispanic and Native American ones. The university responded that its admissions policies fostered educational diversity and were lawful under longstanding Supreme Court precedents.

The case against Harvard has an additional element, accusing the university of discriminating against Asian American students by using a subjective standard to gauge traits like likability, courage and kindness, and by effectively creating a ceiling for them in admissions.

From the Wall Street Journal:

“Eliminating racial discrimination means eliminating all of it,” Chief Justice John Roberts wrote for the court, joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. “The student must be treated based on his or her experiences as an individual—not on the basis of race. Many universities have for too long done just the opposite,” he wrote.

The court’s three liberals dissented. Society “is not, and has never been, colorblind,” Justice Sonia Sotomayor wrote, joined by Justices Elena Kagan and Ketanji Brown Jackson. “The Court ignores the dangerous consequences of an America where its leadership does not reflect the diversity of the People.”

Lee Bollinger, Columbia University’s president, expects five years of chaos before higher education fully adjusts to the new legal landscape, as committees and task forces—already in place at many schools—explore ways to employ income levels, socioeconomic factors and other race-neutral factors to maintain diversity.

Although long expected, the decision still was a shock to academia. “Nobody really believes it’s going to happen, even though all the evidence is right in front of you,” Bollinger said in an interview this month.

. . .But at oral arguments, several justices focused on another passage in O’Connor’s 2003 opinion, where she noted that minority enrollment had increased in the 25 years since the Bakke case.

“We expect that 25 years from now, the use of racial preferences will no longer be necessary,” she wrote.

The majority opinion in that case from a generation ago, Grutter v. Bollinger, didn’t say preferences could continue until “you’re satisfied that diversity has been achieved or something vague like that,” Justice Brett Kavanaugh told UNC’s lawyer. “It said 25 years in there.”

The Harvard and UNC decisions, 237 pages long (and bundled), can be found by clicking on either of the screenshots below.  which go to one pdf:

A lot will have to change, and even though schools may be in shock, they should have expected that this would happen and prepared for it. For prepare they will, trying to find workarounds that are legal. What exactly is legal will require a close reading of the decision.

Your take?  One thing that nobody should be is surprised.

Schools are already issuing letters reassuring everyone. Here’s Harvard’s (I left off some of the signatures):


65 thoughts on “Supreme Court rules against affirmative action at Harvard and UNC

  1. I discussed this case with a famous opponent of race-based preferences. We both agreed that Harvard/UNC were doomed to losing. Harvard went out its way to lose. Claiming that Asians have inferior personalities was so obviously wrong, that Harvard never had chance in court and didn’t deserve one. We also agreed that the Supreme Court (SC) decision would make relatively little difference in the real world. Universities will find a way around the SC decision just as universities found a way around proposition 209 in California.

    1. Universities did NOT find a way around prop 209: minority admissions tanked at Berkeley, for example. And it will also lead to the demise of metrics like grade-point averages and test scores in many more schools.

      1. You are simply incorrect about this. Initially, proposition 209 did cause a fall in black (for example) admissions. Then UC adopted “holistic” admissions to get around proposition 209. Check “Undergraduate admissions summary” ( for some actual 2022 data. No doubt more schools will move away from GPAs and ACTs/SATs as part of this process.

      2. Jerry, I can see why more universities might want to drop test scores so as not to exclude the black students at the bottom who apply (since they can no longer preferentially include them.). But how will that increase “diversity”, i.e., blackness of the freshman class? Presumably a test-less applicant pool becomes a lottery and the freshman class will be only as black as the pool. Will Harvard’s applicant pool be 13% black (the population proportion) or will it be 3%? Only if it were, say, 30% black would the test-less lottery match the results of affirmative action. Why should this happen, though? Harvard couldn’t very well run ads in black neighbourhoods saying, “Come to Harvard! No merit necessary!” but then promise the black students only a lottery chance of actually getting an offer. Once mediocre white students who hadn’t thought they were Harvard material heard about the drive, they’d apply, too, frustrating Harvard’s attempts to salt the pool with black applicants.

        My prediction is the opposite: the end of affirmative action ends the need for test-less application because its only purpose is to operationalize affirmative action. Schools will go back to SAT and GPAs discounted for high school-specific grade inflation in order to admit the matriculants most likely to succeed.

    2. HI Frank, How would you interpret this? I don’t know whether it’s a quotation or paraphrase….

      “Chief: Despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today.”

      1. Universities will grade essays (where the applicant makes it clear that he/she is an URM) as “better”. They will claim that the essays were “better” for reasons other than race, when the truth is otherwise.

        1. I agree that approach seems likely. Use of AAVE or other badges of status will spread. Or everyone will just describe how they suffered from some kind of discrimination or bigotry in childhood. But that system can be gamed by anyone who knows what the criteria are, and will be especially vulnerable to AI-based essay writing. Everyone will be “diverse”, and this will be the heat death of the diversity universe.

          1. Funny note. I actually wrote an essay along these lines (sort of). I wrote an essay on behalf of a young lady who wanted to go to medical school (she has since graduated from medical school). My essay mentioned that she had spent the first month of her life in an incubator with an oxygen tube forced down her throat. She still sounds (when she talks) funny (probably because of the oxygen tube). She did not use my essay.

            I agree that AI is real threat to all sorts of essays.

  2. Universities will scramble—and are already scrambling—to identify “holistic” admissions processes to produce the diversity they want to achieve. But if the underlying purpose is still to achieve racial diversity, would it not still be a violation of the law? Aren’t admissions criteria that are purposely chosen as *proxies* for race just race-based admissions criteria in disguise?

  3. No-one should be surprised, either by the decision, or by the amount of hyperventilating and poorly-crafted argumentation against purely meritocratic admissions (to the extent that such is possible in a process which can never be entirely fair) certain to be much in evidence. As Batya Ungar-Sargon just wrote on Twitter, whatever the spin from the media, this ruling reflects the views of a majority of the citizenry.

    1. “This ruling reflects the views of a majority of the citizenry”. That is actually an understatement. In California, proposition 16 (repealing proposition 209) was defeated by a 57:43 margin. Every part of the California establishment supported proposition 16. Only the people were opposed.

      1. As I recall, Los Angeles County, which has many overwhelmingly black neighbourhoods gave majority support to Prop. 16. But then you did say that every part of the California establishment supported it, so yes.

    1. Clarence Thomas wrote: “I hold out enduring hope that this country will live up to its principles… that all men are created equal, are equal citizens, and must be treated equally before the law.”

      Holy mozzarella, I actually agree with Justice Thomas on something!

      Can someone please pop into Hell and let me know whether it has frozen over?

      1. Even my grandfather had a very simple saying for this Thomas comment. You can hope in one hand and shit in the other and see which one gets full first.

        1. I’m not sure what you mean. Are you saying Clarence Thomas is foolish to hope for equal treatment of Black Americans? Hasn’t the treatment of Black Americans improved tremendously since the 1960s (a super low bar to be sure, but still)?

          1. It HAS improved tremendously, but only as a result of a number of laws (e.g., Title VII of the Civil Rights Act) and court rulings (e.g., Brown v. Board of Education) which enormous numbers of Americans opposed at the time and enormous numbers of Americans would still be delighted to repeal/overturn. I’m not necessarily a fan of affirmative action, but additional progress toward racial equality is far from a sure thing.

          2. The saying is quite straightforward: it conveys the likely results of wishful thinking versus those of action. This is a familiar saying (“wish in one hand …”) from my years growing up and living in Indiana. One may also read “Pray in one hand …”.

      1. I have already made clear my personal views on legacy admissions. However, I think you are incorrect in suggesting using the courts to get rid of them. My guess is that the courts would tend to find the public university legacy admissions were illegal, while private university legal admissions were legal.

    1. I am not a big fan of legacy admissions. However, getting rid of them (in private schools) will be hard. Universities (for some reason, most likely dollars) love them. Worse, legacy admissions seem to enjoy highly influential support across the political spectrum.

    2. I find that issue to be interesting right now. I have the opinion that colleges really like this bc legacy admissions means customer loyalty. And customer loyalty means donations.
      Is that correct (anybody)?

      1. That’s the system! And there’s no law against discriminating based on how many of your descendants went to a school. There’s no lawsuit that could get rid of them.

        The fact of legacy admissions really does belie the fact that these schools don’t give a damn about anything but virtue-signaling and money though.

        1. These two comments focus on why private colleges like legacy admissions. Why don’t you actually look at alumni magazines, and see how alumni (who after all are on the governing boards of colleges) think about the multigenerational history of alumni at a particular college? Many families who are by no means rich, who are not big donors, value the continuity of their family connection with a college. Ascribing to the colleges an interest solely in virtue-signaling and money ignores a lot of other things that are involved.

  4. I don’t understand this:
    “The two cases were not identical. As a public university, U.N.C. is bound by both the Constitution’s equal protection clause and Title VI of the Civil Rights Act of 1964, which bars race discrimination by institutions that receive federal money. Harvard, a private institution, is subject only to the statute.”

    What is “the statute?”

    My big question is: since Harvard is private, why does it not have the right to set whatever standards it wants?

    1. “The statute” here means “the Civil Rights Act of 1964.” UNC is bound by both the Constitution and the statute. Harvard is bound only by the statute.

      1. Why is Harvard, a private university, subject to control of admissions? If the answer is “the civil rights act of 1965,” then I guess the last line of the syllogism is: government control trumps private property. Marx is smiling.

        1. No, that’s not the reason. The reasoning of the Court, including the decision on Harvard, is based entirely on Constitutional grounds, not statutory grounds: “Harvard’s and UNC’s admissions programs violate the Equal Protection Clause of the Fourteenth Amendment.” (p. 2). Had the Court relied upon statute, it would not have been because “government control trumps private property”, but because acceptance of government funding may place conditions on the party accepting he funds.


          1. For clarity, are you saying that Harvard is in violation of 14th even though they are private and did not accept Federal Funds? Or did it get kicked in because they DID accept funds? Thank you.

            1. The majority opinion invokes only the 14th amendment, and applies it to Harvard. In a footnote, Chief Justice Roberts explains:

              “We have explained that discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI.” Gratz v. Bollinger, 539 U. S. 244, 276, n. 23 (2003). Although JUSTICE GORSUCH questions that proposition, no party asks us to reconsider it. We accordingly evaluate Harvard’s admissions program under the standards of the Equal Protection Clause itself.

              In his concurring opinion, Gorsuch does say that Title VI alone is enough to decide the case; he nonetheless also signed the majority opinion, which explicitly declines to base its decision on Title VI.

              Harvard, of course, does receive tons of Federal funding.*


              *It receives some state funding as well. Harvard was originally what would now be called a “state school”, and vestigial connections to Massachusetts still exist; but current state funding would come primarily from research grants originating in the states.

  5. There is an interesting statement in the majority opinion (page 39):

    “At the same time, as all parties agree, nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. See, e.g., 4 App. in No. 21–707, at 1725–1726, 1741; Tr. of Oral Arg. in No. 20–1199, at 10. But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today.”

    So, the Court seems to be saying that the university can take into account an applicant’s discussion of race in an application essay, but race can’t be considered in admissions. I foresee lots of discussion and litigation around how much weight should be given to an essay in determining admission.

    1. Yes. I’ve been reading some of the quotations from the decision. The Court left some wiggle room for the consideration of race in admissions. The wiggles provide material for more litigation in the future. More business for the courts. 🙂

    2. Chief Justice Roberts tartly warned the universities that a dissenting opinion is not the best source of legal advice on how to comply with the majority opinion. Zing!

  6. Harvard should spend part of its endowment and networking skills finding appropriate college placements for minorities who do not currently meet Harvard’s standards but who would be perfectly well off at different schools. (Perhaps they already do this. Does anyone know?) If as a society we also quit using the Harvards of the country as gatekeepers to the leadership class, then the rest of us would not really need to worry about who is or is not admitted there.

    I have always felt that this was more about Harvard administration and faculty wanting to feel virtuous then it was about providing meaningful opportunities for various groups.

  7. “My big question is: since Harvard is private, why does it not have the right to set whatever standards it wants?”

    Because of the statute they violated; Title VI of the Civil Rights Act of 1964

    1. Could you detail one point please? does Title VI kick in for Harvard because (even though they are private) they ‘accepted federal funds’ or would/does it apply even if they do not accept any gov funds? Thank you.

  8. I’m getting kind of sick of anything that the Left doesn’t agree with being called “conservative.” This is not a “conservative” decision. Only about 35% of Americans support affirmative action as presently practiced by universities. Moreover, this is a decision that appears to be in line with the law.

    Frankly, almost everyone I know is a Democrat, and none of them support race-based affirmative action. They support action based on socioeconomic background.

    1. Meanwhile Biden is saying this just isn’t a normal court, so of course we should expect such horrifying decisions. Dems are going to continue backing unpopular policies all the way to defeat. The only thing they seem to have left in the culture wars that the country agrees with them about is abortion. But when you’ve staked a position against a huge swathe of the public on a huge swathe of these issues one issue won’t get the job done, no matter how important that issue is in comparison to the others. Abortion is far more important than any culture war issue, but people see these things in aggregate.

    2. “Conservative” is mild. The head of the NAACP said the Supreme Court was “bow[ing] to the personally held beliefs of a extremist minority… [of] hate-inspired people…”. And I’m sure that’s mild compared to some of the things you’ll see on the social medias.

      I’m tired of everything the left doesn’t agree with being called “hate”.

      1. Well, most people are tired of it, including the majority of people who vote for Democrats. As usual, they are doing their best to snatch defeat from the jaws of victory. Same as it ever was…

  9. Not to worry. The academic authorities have devoted the last 40 years to gaming the Bakke decision, as for example in Harvard’s gimmick of invented “holistic” personality standards. Therefore, we can rely on academe to devise new tricks to circumvent the law on behalf of the holy goals of DEI.

    Dishonest means on behalf of supposedly noble goals is virtually the defining feature of contemporary “Progressivism”, just like that of an earlier pop-Left fashion trend. The history of the “Bolshevik experiment” should have settled the ends-and-means fallacy for good. But that was in a galaxy far away and long ago, in the pre-historic BZ (Before Zuckerberg) era — so it is unknown to our contemporary “Progressives”.

    1. Freddie deBoer also has some thoughts. This one is especially interesting:

      “Affirmative action deepens inequality within the Black community. It takes the winner class of Black America, the kinds of people who are worthy or near-worthy of admission to elite colleges, and helps them pull further away from the average Black person. This is undeniable, it’s inherent, and it’s immutable. Affirmative action will always serve the Black elite at the expense of the Black average, even while it also serves the Black elite at the expense of the white and Asian elite. The average Black American does not benefit from affirmative action in any way, shape, or form. I can’t think of a more obvious Band-aid of a racial justice program than affirmative action. How about we just cut Black people checks, instead of helping a tiny fraction of them climb the ladder so that they too can be opportunity-hoarding elites?”

      1. Freddie de Boer is perfectly right, and I guess even more so in South Africa than in the US.
        Note that his surname would have a special connotation here.

      2. Cutting cheques wouldn’t work either, as we know so well in Canada, and would be enormously more expensive for taxpayers than a few elite schools diverting tuition and donation resources to chasing the dragon of black equity with affirmative action for the black upper crust. If AA was an expensive government program I could see just leaving piles of $100 bills on street corners instead but AA didn’t cost taxpayers anything, except cheated opportunity for their bright children. I hope Mr. deBoer doesn’t think the end of affirmative action should accelerate the drive for Reparations!

        1. I remain unconvinced that any form of direct monetary reparations (in amounts that would meaningfully change people’s lives) could be implemented fairly or successfully. Further, I expect that any such system will not do much to change the landscape of inequality. Even if it was assured that the policy would only target the poor descendants of slaves (or those who went to residential school in Canada) it is likely that it would still fail to close achievement and wealth gaps. Without other cultural change within the these communities I doubt it would last more than a generation, leaving us right back were we started.

      3. DeBoer wasn’t really arguing for reparations. He’s just noting that AA is even worse than reparations at helping the majority of black people. The whole article is worth a read.

        1. It is and I did. He allowed some sympathy for AA as a kind of reparations but correctly points out that it is highly inefficient for this goal, benefiting only the tiny elite black aristocracy and, of course, the bureaucracy that administers AA.

          My worry is that the black “community” will demand reparations as the price of racial harmony in retaliation against the Supreme Court’s perfidious “abnormal” decision, so characterized by President Biden. A “normal” Court ought to have had four AA-friendly justices named to it by President. H. Clinton, now cruising through her second term along the moral arc of history. This anomaly needs to be corrected with cash. Vast sums of cash.

  10. I’ll tell you the three groups that will make the most out of this: DEI consultants/administrators, activists, and application/essay writers who are paid for their services. For the latter, there will be a whole new scheme of criteria to which students aren’t privy, and those who can pay will do so through the nose for that expertise.

  11. There is a very negative side about Affirmative Action that should be considered. In South Africa Affirmative Action (aka BEE = black economic empowerment) is rife and official, for understandable reasons, but if a black candidate gets an offer or post (I can’t say a minority candidate, since Blacks are the overwhelming majority), there is always this whiff of “(s)he only got it because of his/her race”. This is often true, but really unfair to the many brilliant and well qualified blacks. The latter always carry this unjustified -and publicly unspoken- stigma.
    I’m very much in favour of ‘sunset clauses’, it should end after a while, say 25 years?

    However, it appears very much more important to me to support at a very much earlier stage: Kindergarten and primary schools. What to do with a 12 year old that can hardly read or do simple maths? With a vertiginous unemployment rate (officially about 33% in the RSA, but probably higher, and I guess comparable to the US ‘inner cities’) that is a Herculean task. Economic growth would help, but the very BEE system guarantees an environment that is not exactly conducive to that. A kind of Catch 22. You may gather I’m not very optimistic about the RSA, but I’m not really pessimistic either, there is an independent Judiciary, it is really a democracy, there are strong anti corruption drives, the banking system is great, there is quite a bit of environmental awareness, inflation is high, but not rampant (well under 10 %), and I suspect and hope the ANC (nearly thirty years in power now, which inevitably leads to corruption, especially via “Cadre Deployment”) will lose it’s absolute majority in 2024. Don’t get me wrong, it is not the ANC per se, I just think it is healthy that power changes from time to time, and that the ‘Cadre Deployment’ of the ANC is a murderous (for the economy and functioning of state) monster. My apologies for deviating from the subject.

    In summary: affirmative action at university level, and even more at government, parastatal or administration level is detrimental to a society. And a burden for those from ‘previously disadvantaged groups’ that have real merit.

    1. Get someone or a group of successful millionaires in your nation to fund a private scholarship program to put ALL young children into Montessori Early Childhood, age 3-6. They will learn to read. Their cognitive will flourish. Their personal pride and respect for others also. Public schools world-wide are majority “whole language” and teachers with their unions champion it still, even though debunked. And they are “Paolo Freire’s schools,” meaning conditioning into Woke Marxism.

      Montessori schools will have to be supported, and their schools of education.

  12. It is very easy to cherry-pick illustrations of the negative (or positive) aspects of affirmative action. This example is only worth reading about because the New York Times picked the two cherries to compare, and one of them is Bakke himself. Needless to say it’s not the last word on why universities should or should not engage in AA, but an interesting contrast.

    [edit] This is the profile of Chavis from the NYT Magazine

  13. Part of the problem here – and it is almost never mentioned in part b/c schools (intentionally) try their damnedest to keep it quiet is the drop out rate for diversity hires.

    This in itself makes the system a disaster. It is HUGE in law schools, I don’t know about STEM but I’ve heard there also.
    Letting in kids that will probably fail and leave disappointed and in debt is a large price to pay for campus aesthetics and virtue signaling. And like, say, the disasterous BLM the highest price is paid by the people it is supposed to help.
    So many lefty interventions like affirmative action end up with 2nd order effects that damage or destroy the entire system.


  14. It has been amusing but depressing to see some on the left continue to defend racist policies with regard to college admissions. I eagerly await *Z M***s latest pile of dross on the subject.

    BTW, The Beard is really mad at you again, Jerry.

    1. Predictably, *Z *y**s has stuck his beard in, and he is claiming “It’s a white supremacist sort of decision”.

      Thing is, why hasn’t he resigned his position and given to a PoC. The racist!

  15. Roberts clip telling school administrators to not play games :

    “But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today. (A dissenting opinion is generally not the best source of legal advice on how to comply with the majority opinion.)

    What cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows,” and the prohibition against racial discrimination is “levelled at the thing, not the name.”

  16. In case anyone is still checking in here, an interesting take on both affirmative-action admissions and hiring by a professor who had also been an admissions coach/consultant.

    “as a Black Ph.D. candidate in search of my first gig as a professor, I agonized over how — and whether — to talk about my race in ways that would mark me as a possible diversity hire. It felt like cheating to check the box and like self-sabotage not to.”

    “[A]ffirmative action — though necessary — has inadvertently helped create a warped and race-obsessed American university culture.”

  17. If you are still taking Jewish jokes: a Polish-American tourist is visiting post war Warsaw and notices his watch has stopped. Shortly he finds a store with a very large
    clock hanging outside and in its window so he enters and goes to the counter where the proprietor is standing and handing him the watch asks if he can look at it and find the problem. The proprietor says: I can’t do that, so the man asks him why. He responds: I’m not a watchmaker, I’m a mohel. So the man says: well, why did you put up these clocks outside your store?The proprietor responds: So vat should I put in the vindow? (anyone who doesnt know what a mohel is?; if so, ask Jerry.)

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