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June 30, 2023

Supreme Court restricts race-based college admissions

Photo | Courtesy of State House News Service Attorney General Andrea Campbell said Thursday that the U.S. Supreme Court's opinion significantly restricting affirmative action practices was "couched in fear and fear-mongering."

The nation's highest court on Thursday declared that two major colleges violated the Constitution by considering a student's race as a factor in admissions, a landmark decision that sent shockwaves through the higher education industry and generated condemnation, disappointment and criticism from many corners.

The U.S. Supreme Court's conservative majority restricted race-based admissions in a pair of cases related to policies at Harvard College and the University of North Carolina, respectively the first private and public universities in the country.

Those policies, which supporters have touted as a way to diversify campuses and correct for structural factors that put students of color at a disadvantage compared to their peers, run afoul of the Fourteenth Amendment's requirement that all Americans be provided equal protection under the law, the court ruled.

"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," Chief Justice John Roberts wrote in an opinion for the majority. "This Nation's constitutional history does not tolerate that choice."

Judges Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanuagh and Amy Coney Barrett -- all nominated by Republican presidents -- joined Roberts in the majority opinion. The three Democrat-nominated judges -- Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson -- dissented in the UNC case. Jackson, who previously served on Harvard's Board of Overseers, abstained from the Harvard ruling.

The liberal justices in their dissent invoked the nation's history of slavery, the court's landmark Brown v. Board of Education decision that led to desegregated schools, and the modern fight for civil rights.

"Today, the Court concludes that indifference to race is the only constitutionally permissible means to achieve racial equality in college admissions. That interpretation of the Fourteenth Amendment is not only contrary to precedent and the entire teachings of our history ... but is also grounded in the illusion that racial inequality was a problem of a different generation. Entrenched racial inequality remains a reality today," Sotomayor wrote in the dissent.

"Ignoring race will not equalize a society that is racially unequal," Sotomayor added. "What was true in the 1860s, and again in 1954, is true today: Equality requires acknowledgment of inequality."

The decision will have a major impact in Massachusetts, home to many colleges and universities that will now need to alter their admissions practices.

Attorney General Andrea Campbell said her office will work with the Healey administration and higher education institutions to examine other ways "to remove unnecessary barriers to entry" that students of color face now that affirmative action, which has long been used to increase diversity on campus, has been severely restricted.

"They have taken away some of our tools in our toolkit, but they have not taken away everything," Campbell said. "I want folks to remain optimistic because we're going to keep working and we're going to keep fighting like hell."

Campbell said the ruling "undermine[s] and discount[s]" the nation's history.

"Race at the outset was used to marginalize and exclude Black residents, for example, from accessing all types of benefits, some of that perpetuated by the Supreme Court itself," she said. "This history, this context is critically important because it explains the racial disparities that exist in our health care system today, in our criminal legal system today, in our housing system and our economy and so much more."

Within an hour of the court's decision becoming public, Gov. Maura Healey's office rolled out a statement signed by more than 100 elected officials, higher education leaders, organized labor representatives and advocacy groups criticizing the ruling.

"We want to make sure that students of color, LGBTQ+ students, first generation students, and all students historically underrepresented in higher education feel welcomed and valued at our colleges and universities," the statement, also signed by House Speaker Ron Mariano and Senate President Karen Spilka, said. "Today's decision, while disappointing, will not change our commitment to these students. We have an imperative to make sure our schools reflect our communities. Our academic competitiveness, the future of our workforce, and our commitment to equity demand we take action."

A New Era of Admissions Looms

While the majority opinion is poised to reshape admissions practices that have existed for decades, it left some room for admissions officers to consider race to a certain degree. The group Lawyers for Civil Rights said the decision "cannot be construed as an outright ban on race-conscious admissions" and instead "rais[es] the bar on universities' ability to consider race in admissions."

Roberts stressed that his opinion should not "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."

Still, he cautioned that colleges and universities cannot revive "the regime we hold unlawful today" by shifting a similar focus on race to application essays or other avenues.

"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," Roberts wrote. "In other words, the student must be treated based on his or her experiences as an individual -- not on the basis of race."

Higher education leaders from around the state have said they will need to assess how their admissions processes will be affected by the decision.

Officials at Harvard said Thursday they "will certainly comply with the Court's decision" while describing their intent to remain "a community comprising people of many backgrounds, perspectives, and lived experiences."

"In the weeks and months ahead, drawing on the talent and expertise of our Harvard community, we will determine how to preserve, consistent with the Court's new precedent, our essential values," school leaders wrote in a letter to Harvard faculty, staff and community members. "The heart of our extraordinary institution is its people. Harvard will continue to be a vibrant community whose members come from all walks of life, all over the world. To our students, faculty, staff, researchers, and alumni -- past, present, and future -- who call Harvard your home, please know that you are, and always will be, Harvard. Your remarkable contributions to our community and the world drive Harvard's distinction. Nothing today has changed that."

Statements from the presidents of Massachusetts' nine state universities and the University of Massachusetts also said they remain committed to diversity.

Salem State University President and State Universities Council of Presidents Chair John Keenan said he was disappointed in the decision, and UMass officials said they are working to understand how their admissions policies will be affected.

"The University of Massachusetts will continue to follow the law, and will do so while sustaining its deep and longstanding commitment to diversity, equity and inclusion," they said.

The presidents of Massachusetts' nine state universities said they "stand firmly that the state universities will continue to ensure that students of color, first-generation college students, LGBTQIA+ students, and other historically underrepresented students in higher education are able to access the high-quality postsecondary education we offer and they deserve."

The Association of Independent Colleges and Universities in Massachusetts, which represents 59 private universities in the state, said its members are "unwavering in their commitment to serve every student who seeks the opportunity to learn on a college or university campus."

"While the Supreme Court's decision alters the path, grounded by 40 years of legal precedent, our colleges and universities will abide by the Court's decision while continuing to ensure that their campus communities benefit from a learning environment that reflects the richly diverse society in which we work and live," AICU Mass. said. "The decision does not change our commitment to creating diverse, inclusive, and welcoming campuses where each person experiences a genuine sense of belonging."

Campbell may need to play a new role to ensure compliance, too. Asked if enforcement of the court's ruling would become a new reality, she replied, "It will be, probably, in many ways, but more to come on that."

Public higher education advocates in Massachusetts condemned the decision, and used it as an opportunity to push for their funding agenda this legislative session.

Massachusetts Teachers Association President Max Page and Vice President Deb McCarthy said the ruling heightens the barriers to higher education, and encouraged lawmakers to pass the so-called Cherish Act (S 816 / H 1260). The union has long supported that bill, which would create a "debt free college scholarship program" that supporters say would prioritize aiding students with economic needs.

"To truly make higher education accessible to all, we need more than words; we need action right here in Massachusetts," Page and McCarthy said. "Access to high-quality, debt-free public higher education is essential to achieving racial and economic justice. Passing the Cherish Act, now before the state Legislature, is an excellent first step toward that goal. Other provisions of that bill will improve availability of support services for Asian-American, Black, Latino and other marginalized, nontraditional and first-generation students, increasing the likelihood of success in their academic and career pursuits."

The Higher Ed for All Coalition, which describes itself as a group of educator unions and progressive advocacy organizations, also called for state lawmakers to pass the "debt-free college" bill.

In 2017, the average price of tuition, fees, room, board and books minus the average aid received for a public four-year institution accounted for 38 percent of Black household incomes and 43 percent of Latino household incomes in Massachusetts, compared to 21 percent of white household incomes, according to the coalition. Between 2019 and 2020, they said, the percentage of first-time Black and Latino students enrolled in community colleges declined by 33 percent and 27 percent, respectively.

Boston Teachers Union President Jessica Tang called affirmative action "a vital tool," adding, "On a personal note, as an Asian American alumna of Harvard University as well as an educator, I stand firmly in support of affirmative action."

She wasn't the only one to recount personal experience as a student of color in the Ivy League.

Campbell recalled instances when she was the only Black student in her classroom at Princeton University, and said her inclusion benefitted not just her but her white classmates as well.

The court's decision, Campbell said, was "couched in fear and fear-mongering."

"This idea that if you are helping benefit a population of folks that have been marginalized since the beginning of time in this country that you're somehow unfairly taking something away from someone else -- it's a false narrative," she said.

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