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Supreme Court reverses decades of precedent by ending affirmative action


Today the U.S. Supreme Court effectively ended race-conscious admissions policies at colleges and universities across the country. By a 6-3 vote, the court invalidated admissions programs at Harvard and the University of North Carolina. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: The decision reverses decades of precedent upheld over the years by narrow Supreme Court majorities. Chief Justice John Roberts, a longtime critic of affirmative action programs, wrote the decision for the court majority. Many universities, he said, have for too long 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. Noting that the court's most recent affirmative action decision in 2003 had suggested that there would have to be an end to such programs at some future point, Roberts essentially said that time has now come.

LEE BOLLINGER: It feels tragic.

TOTENBERG: Columbia University President Lee Bollinger has, for 30 years, been a leading proponent of affirmative action.

BOLLINGER: It feels like the country has been on a course of choosing between a continuation of the great era of civil rights and another view of - we've done this long enough, and we need a whole new approach in this society. It's now the second choice.

TOTENBERG: That sentiment echoed Justice Sonia Sotomayor's dissent. The court, she said, entrenches protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society. Justice Ketanji Brown Jackson, the court's first female justice (ph), chimed in, quote, "with a let them eat cake obliviousness," she said, "the majority pulls the ripcord and announces colorblindness for all by legal fiat." But deeming race irrelevant in law, she said, does not make it so in life. Indeed, the reality is that, in those places where affirmative action has been eliminated, there's been a severe drop in minority and particularly African American admissions. NYU law professor Melissa Murray was the acting dean at the University of California, Berkeley in 2016 and '17, when a state referendum barred the use of race in college admissions decisions.

MELISSA MURRAY: There was an immediate drop-off in the number of African American students. And that was both a confluence of the change in the admissions policy, but also African American students not wanting to go under those conditions. People want to be with other people like them. They don't want to be spotlighted. There is a kind of comfort in numbers. And it was very difficult, I think, for a very long time to recruit under those conditions.

TOTENBERG: Indeed, the situation got so bad, she says, that she had to go to the president of the state university system to get permission to place clusters of African American students in classes instead of sprinkling them around. Now, every school will be in that situation, or so it may seem. The court did not entirely close the door to racial considerations in college admissions. As Roberts put it, nothing in this opinion should be construed as prohibiting universities from considering an applicant's discussion of how race affected his or her life. What's more, the court specifically left open the possibility that the nation's military academies, because of their, quote, "distinct interests," may be able to continue with their very successful affirmative action programs, which have resulted in a very diverse officer corps. University of California Professor Jerome Karabel.

JEROME KARABEL: That issue is so sensitive because it raises the question of national security that the court has backed away from following its own logic.

TOTENBERG: And he notes that a similar logic might apply to police forces, seeking to recruit minorities so as to ensure that a virtually all-white force would not be policing a majority-Black town. For the vast majority of colleges and universities in the country, however, diversity will no longer be an acceptable rationale for taking race into account. The decision likely will cause ripples in every aspect of the nation's economic, educational and social life. From the Rooney Rule that requires a minority applicant to be considered in all NFL coach hiring decisions to employment and promotion decisions, DEI programs in schools and workplaces and much, much more. Harvard Law professor Randall Kennedy.

RANDALL KENNEDY: We're going to be fighting about this for the next 30 years.

TOTENBERG: Professor Kennedy points to what he calls double-talk in the Supreme Court's majority decision. Take two signs, he says. One says, Black people stay out, and contrast it with a sign that says, Black people welcome.

KENNEDY: Both have race in them. Are they truly both racially discriminatory? Well, the Supreme Court, at least in one side of its mouth, seems to suggest that, yeah, they're both racially discriminatory. But then, at the end of this opinion, it says, well, of course one can look favorably upon somebody who has overcome racial impediments.

TOTENBERG: Indeed, today's Supreme Court decision, plus dissents and concurrences, reached a book-sized 237 pages. Race has never been an easy subject for Americans to deal with, and it's about to get a lot harder. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.