The Supreme Court on Thursday said universities and colleges could no longer use a form of race-conscious admissions, rejecting a decades-old precedent in affirmative action policy.

Rather race should be considered in an individual’s experience — conveyed through an essay, interview or otherwise — instead of their identity in composing a demographic make-up of the student body.

The court voted 6-3 in two decisions along ideological lines, ruling that admissions based on affirmative action violated the equal protection clause of the Fourteenth Amendment.

“The student must be treated based on his or her experiences as an individual—not on the basis of race,” Chief Justice John G. Roberts wrote in the majority opinion. “Many universities have for too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin.”

Justices sided with a group that sued Harvard University and the University of North Carolina over admission policies that take an applicant’s race into account as a method to promote diversity, equity and inclusion in a campus body. Military academies are exempt.

Roberts wrote that “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.”

It means that California’s private colleges and universities — including Stanford University, the University of Southern California and the California Institute of Technology, among others — must now face the same prohibition on race-conscious admissions that covered its public schools when voters approved Proposition 209 in 1996.

The decision affects the University of California and California State University system less than other states’ public institutions, given California’s has a long-standing ban on race-conscious admissions.

Prop. 209 blocked public universities and colleges, governmental bodies and other public systems from using race, gender and other factors in hiring, contracting or admissions. There were minimal exceptions to prevent breaking federal law that, at the time, required race-conscious hiring for funding, such as research grants that the UC campuses rely on.

Private institutions were exempt. Now they must face the same shift that their public counterparts experienced after Prop. 209 went into effect.

UC leaders, concerned about this outcome, filed an amicus brief in November urging the Supreme Court to uphold affirmative action policies. Amicus briefs reflect the opinions of people who are not parties to a case, but who can offer courts insights.

Blocking race-and-gender-conscious admissions is detrimental to students, UC attorneys wrote, because inclusivity policies promote greater intellectual diversity and show the next generation that all people are welcome.

“In a Nation where race matters, universities must maintain campus environments that enable them to teach their students to see each other as more than mere stereotypes,” they wrote. “Succeeding at that endeavor is crucial to preparing the next generation to be effective citizens and leaders in an increasingly diverse Nation.”

What is California Prop. 209?

California was the first state to institute a ban on race-and-gender-conscious hiring and admission in public higher education and the public workforce. Washington state followed suit in 1998 before repealing the measure last year. Now Florida, Michigan, Nebraska, Arizona, New Hampshire, Oklahoma and Idaho have similar restrictions.

Public universities started applying affirmative action in the late 1960s. The practice originated with former President John F. Kennedy, who issued a 1961 executive order directing government agencies to ensure equal opportunity in employment.

Race-conscious admissions were designed to promote campus diversity, reduce inequality and make up for historical hindrances that have prevented people of color from pursuing a college education.

“It existed for about 30 years and became impactful in Black and Hispanic student admissions,” said Zachary Bleemer, an expert in higher education who earned his Ph.D. at UC Berkeley, in an interview the week before the Supreme Court released its ruling.

Even then, race-conscious admissions weren’t popular: Prop. 209 passed with a 10% margin.

When it passed, Republican Pete Wilson was governor, three-quarters of the California voting population was white and some politicians were pushing nativist policies to garner support. About two-thirds of white voters supported Prop. 209, whereas a majority of Black, Latino and Asian voters were against it, according to a Los Angeles Times exit poll.

Said Richard Thompson Ford, a Stanford Law School professor who is an expert on race relations and discrimination, “affirmative action has always been controversial and many voters oppose it.”

Speaking to The Bee before the Supreme Court released its decision, Ford said the Constitution allowed “affirmative action under limited circumstances, but it has never required it. As such, states — as well as private institutions — have already been free to choose whether or not to use affirmative action.

“Prop. 209 simply reflects California’s decision not to engage in race-based affirmative action,” he said.

Proportion of minority students ‘fell dramatically’

With the Supreme Court gutting affirmative action, Bleemer said, “What you’d see is a much smaller scale version of what happened after Proposition 209.”

In their amicus brief, UC’s attorneys wrote that the proportion of students from underrepresented groups “fell dramatically” with the passage of Prop. 209, forcing the system to use “race-neutral measures to pursue diversity.”

While that “improved the UC system’s overall student body diversity substantially since the precipitous drop caused by Proposition 209,” it has been insufficient to make campus bodies reflect California’s diversity, particularly at more selective UCs.

Students who previously chose to attend a UC went to private systems in and out of state.

“A group of high-testing Black and Hispanic students, who under affirmative action went to Berkeley and UCLA and now couldn’t get into those schools, flowed into Ivy League and private universities that still had affirmative action and were getting admitted,” Bleemer said.

In the wake of the Supreme Court decision, the opposite could happen. Since public universities like UCLA, Berkeley and Davis have lived by the Prop. 209 protocol for far longer and had to adjust, more Black and Latino students might switch their preferences and apply there.

Still, the impact on the average California student could be minimal, Bleemer noted: Just 15-to-20% of students in California go to private colleges, and far fewer attend elite universities.

Failed attempts to repeal Prop. 209

Affirmative action remains unpopular across racial lines, as shown by a 2020 ballot initiative to pull Prop. 209.

The Democratic-controlled Legislature in 2020 thought that voters might back Prop. 16 after the summer of civil unrest that followed the police killing of George Floyd, a Black man in Minnesota, and the pandemic that highlighted racial inequity.

Lawmakers hastily got the measure on the ballot, arguing that a repeal of Prop. 209 would increase racial and gender representation in higher education and in the public workforce, particularly aiding Latino and Black residents.

Prop. 16 failed by a larger margin than Prop. 209 had passed. At the time, lawmakers and advocates for the proposition said not enough had been done to build public support and that the issue got lost on a crowded ballot.

Ford said that “post-election surveys showed that many voters thought repealing Prop. 209 would also repeal basic anti-discrimination protections. This is incorrect and the misperception might have made the difference.”

People against Prop. 16 said it was discriminatory and that diverse communities in California had made strides in representation.

“In a state hardly seen as conservative, voters rejected a repeal of the state constitution’s guarantee of equal treatment by race,” Arnold Steinberg, a strategist with the “No” on Proposition 16 campaign who worked on Prop. 209, said following the results.

Hispanic and Latino state workers are underrepresented compared to the California population, according to a review of 2020 data by the California Department of Human Resources, the most recent year data is available. Black and white civil workers were overrepresented, while workers of different Asian descents about matched California’s population.

Most of California is Hispanic: 40% of the state identifies as Hispanic or Latino, 35% as white, 16% as Asian and 6.5% as Black, according to 2020 census data.

Supreme Court decision on affirmative action

The court heard two cases concerning race-conscious admissions in October, brought by an organization that claims students were harmed because of affirmative action policies at Harvard University and the University of North Carolina at Chapel Hill.

Students for Fair Admissions, Inc., which claims to represent 20,000 people, said that race-conscious admissions discriminated against white and Asian students. Schools should not refuse a race-neutral alternative for fear of potential changes to the student body if there’s no proof that it could detriment the school’s academic quality, the group argued.

It called for the Supreme Court to overturn Grutter v. Bollinger, a 2003 case affirming that considering race in a holistic admissions process to promote campus diversity did not harm non-minority applicants nor violated federal law.

The 2003 precedent followed a 1978 decision in Regents of the University of California v. Bakke. In this case, a white student who twice failed to get into UC Davis’ medical school argued that a program to admit a certain number of students from minority backgrounds blocked him from getting in.

The justices said “no” to racial quotas and found for Allan Bakke, who was then admitted. But they also said that considering race in admissions was allowed under federal law.

Relying on precedent, Harvard and UNC contended that diversity improves academic experiences and that considering race in the admissions process does not violate the a part of the 1964 Civil Rights Act or the 14th Amendment. The Civil Rights Act affects private schools that receive federal funding, like Harvard.

The court did not entirely gut the 2003 precedent in allowing colleges to discern an individual student’s perseverance or other qualifications in overcoming racial discrimination as part of their personal stories.

In her dissenting opinion, Justice Ketanji Brown Jackson wrote, “Our country has never been colorblind. Given the lengthy history of state-sponsored race-based preferences in America, to say that anyone is now victimized if a college considers whether that legacy of discrimination has unequally advantaged its applicants fails to acknowledge the well-documented ‘intergenerational transmission of inequality’ that still plagues our citizenry.”

Jackson, the first Black woman to serve on the Supreme Court, recused herself from the Harvard case, having served on the board of the university.


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