By 6-to-3 U.S. Supreme Court vote, affirmative action for college admission declared unconsitutional


A landmark decision by a 6-to-3 majority of the U.S. Supreme Court today overturned decades of race-based preferences for college admissions, especially at some of the nation’s highly competitive schools like Harvard and the University of North Carolina.

While many media outlets will offer their own opinions on the decision involving the end of a common practice of many higher education facilities, below are excerpts from the court’s majority opinon itself:

Respondents’ assertion that race is never a negative factor in their admissions programs cannot withstand scrutiny. 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. 

When a university admits students “on the basis of race, it engages in the offensive and demeaning assumption that [students] of a particular race, because of their race, think alike.” Miller v. Johnson, 515 U. S. 900, 911–912. Such stereotyping is contrary to the “core purpose” of the Equal Protection Clause. 

Many universities have for too long 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. This Nation’s constitutional history does not tolerate that choice. 

But we have permitted race-based admissions only within the confines of narrow restrictions. University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and — at some point — they must end. Respondents’ admissions systems — however well intentioned and implemented in good faith — fail each of these criteria. They must therefore be invalidated under the Equal Protection Clause of the Fourteenth Amendment.

Universities may define their missions as they see fit. The Constitution defines ours. Courts may not license separating students on the basis of race without an exceedingly persuasive justification that is measurable and concrete enough to permit judicial review. As this Court has repeatedly reaffirmed, “[r]acial classifications are simply too pernicious to permit any but the most exact connection between justification and classification.” … The programs at issue here do not satisfy that standard. 

[For that reason, one dissent candidly advocates abandoning the de- mands of strict scrutiny. See post, at 24, 26–28 (opinion of JACKSON, J.) (arguing the Court must “get out of the way,” “leav[e] well enough alone,” and defer to universities and “experts” in determining who should be discriminated against). An opinion professing fidelity to history (to say nothing of the law) should surely see the folly in that approach.]

The point of respondents’ admissions programs is that there is an inherent benefit in race qua race —  race for race’s sake. Respondents admit as much. Harvard’s admissions process rests on the pernicious stereotype that “a black student can usually bring something that a white person cannot offer.” …  UNC is much the same. It argues that race in itself “says [something] about who you are.” 

The entire point of the Equal Protection Clause is that treating someone differently because of their skin color is not like treating them differently because they are from a city or from a suburb, or because they play the violin poorly or well. “One of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities.” 

Most troubling of all is what the dissent must make these omissions to defend: a judiciary that picks winners and losers based on the color of their skin. While the dissent would certainly not permit university programs that discriminated against black and Latino applicants, it is perfectly willing to let the programs here continue. In its view, this Court is supposed to tell state actors when they have picked the right races to benefit. Separate but equal is “inherently unequal,” said Brown. 347 U. S., at 495 (emphasis added). It depends, says the dissent. 

(A dissenting opinion is generally not the best source of legal advice on how to comply with the majority opinion.) “[W]hat 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.” Cummings v. Missouri, 4 Wall. 277, 325 (1867).

A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university.

In other words, 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. 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. Our constitutional history does not tolerate that choice.


  1. Stranger – you do not understand originalism. It is not a political point of view.

    Here is Justice Gorsuch: “As originally understood, the First Amendment protected speech. That guarantee doesn’t just apply to speech on street corners or in newspapers; it applies equally to speech on the Internet. … (Or the 4th Amendment’s requirement to get a warrant for a search applies also to thermal imaging of a home.) Whether it’s the Constitution’s prohibition on torture, its protection of speech, or its restrictions on searches, the meaning remains constant even as new applications arise.”


    Once again I ask you, if the ruling is not rooted in the Constitution, what standard do you propose?

    • Hi Penny – My problem is not that originalism never has a place in Constitutional interpretation – indeed, in the misguided Heller decision, any original interpretation would have rendered Scalia’s argument completely moot. Rather, it is that the current and recent Supreme Court justices pick and choose when to use it depending on their preconceived political leanings. They would have to read the history of the founding and the other time periods of the amendments to apply originalism effectively, and it is clear that this is a bridge much too far for this current court. The bought and paid for justices don’t even attempt to render unbiased opinions, and they don’t have the decency to recuse themselves when deciding cases for their benefactors.

      My two previous examples were

  2. Chief Justice John Roberts — ‘The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.’

    A victory for common sense and the Constitution for all Americans.

    • Yep. Only thing left to do is replace the 3 liberal whack jobs and put true Constirutional judges in their place.

      What the heck was that MLK guy even thinking when he dreamed about “being judged by the content of character and not the color of the skin.” What a dufus he was. (Sarcasm implied).

    • This isn’t rocket science. When our country is saddled with incompetent chief executives elected by a minority of the voters, they select incompetent jurists who bend the Constitution to the interests of the highest bidder. Worst, they rely upon a flawed doctrine of originalism without even a modicum of historical knowledge. Can you even imagine the six conservative midgets on the court reading a historical account from 1787 or when any of the amendments were ratified? Impossible!

      The only positive outcome of this colossal level of incompetence is that it energizes thoughtful voters to eschew a repeat of this foolishness before our jurisprudence devolves back to the Stone Age.

      • Stranger – We are agreed on a couple of things – we have an incompetent chief executive in Joe Biden. And he selected Justice Jackson, who doesn’t even know what a woman is. After that, you go off the rails . . .

        What evidence do you have for your accusation that any Justice was bought off? None.

        If judges don’t interpret laws based on the meaning and intent as written by legislatures (originalism), then what do you propose our country uses? Your feelings?

        “Midgets”? How insensitive!

        You should actually read the opinions. The majority based its decision on our Constitution, in this case the 14th Amendment (equal protection under the law). The minority wants to continue racial preferences for some as determined by “experts” with no measure of success or timeline for ending.

        • Hi Penny, and happy Independence Day to you and your family.

          Only five Presidents have been elected to office without a majority of the popular vote – all have been ineffective, and the last two have been disastrous for our country.

          Originalism as practiced by the current and recent misguided Supreme Court justices has absolutely nothing to do with understanding original intent of the amendment writers and everything to do with pleasing their political constituency (for the honest ones) and financial benefactors (for the two dishonest ones).

          To wit, The first and second amendments were ratified in 1791. I’m sure all of us remember from our U.S. History class how the founders clearly stated how the First Amendment gives large corporations the right of free speech that can be monetized into elections. It takes no stretch of the imagination to realize that this early Congress was deeply concerned about the free speech rights of multinational American corporations. Thus, we get Citizen’s United in 2010.

          And of course our history books are replete with evidence that these same founders granted a right for independent ownership of firearms without any restrictions whatsoever (even though they clearly wrote in the Second Amendment that it was for state militias). It only took 200 years for Antonin Scalia to discover this historical meaning in his Heller decision. All previous justices, including the contemporaneous ones in the early court, missed it.

          We have an activist majority in the Supreme Court looking for ways to grant minority opinions for political gain. They incorporate a convenient doctrine of originalism only when it suits their political whims and only without the slightest concern of what the amendment writers were thinking and saying.

          Our country and our freedoms are in the balance and these Neros fiddle away.