Supreme Court strikes down use of affirmative action

Overturning decades of precedent, the U.S. Supreme Court on Thursday struck down the use of affirmative action, ruling that it is unconstitutional for colleges, universities — and professional schools for law, medicine, and nursing — to consider race as one factor in deciding who they will admit.

The decision comes as a blow to many in the field of medicine, which has been unable to appreciably increase the numbers of Black, Hispanic, and Indigenous doctors in recent decades. Many medical schools have turned to using race as one factor among many in admissions decisions to try to boost the numbers of students from underrepresented groups and help overcome obstacles to entry like MCAT testing that favor students from wealthier backgrounds.

The justices ruled on two cases brought by an anti-affirmative action group: Students for Fair Admissions v. President and Fellows of Harvard, and Students for Fair Admissions v. University of North Carolina. The court ruled that the admissions policies used by the schools violate the Equal Protection Clause of the 14th Amendment. The decision was written by Chief Justice John Roberts with justices breaking along ideological lines with Clarence Thomas, Samuel A. Alito, Neil M. Gorsuch, Brett M. Kavanaugh, and Amy Coney Barrett agreeing and Justices Sonia Sotomayor, Ketanji Brown Jackson, and Elena Kagen dissenting. (Justice Jackson recused herself from the Harvard case because she had served on the school’s board of overseers.)

The court said in the past, it had “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.”

“Because Harvard and UNC’s admissions programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points, those admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause,” the decision read.

But the decision did not go as far as to prohibit all discussion of race in admissions, for example if applicants wish to write about how their racial identity shaped them, that appears to be acceptable, according to the court.

“At the same time, nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university. 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,” the decision read.

The opinion ended with the statement: “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. 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.”

Students for Fair Admissions argues that affirmative action is “unfair, unnecessary and unconstitutional” and that a student’s race should neither harm nor help their ability to gain entrance to a college. But many medical leaders say considering race in admissions is necessary to create a diverse physician workforce, which numerous studies have shown leads to improved patient care.

Dissenting opinions said the court was turning its back on 45 years of precedent and progress. The decision “subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society,” wrote Justice Sotomayor.

“Efforts to do away with affirmative action undermine decades of progress in creating a diverse physician workforce and will reverse gains made in the battle against health disparities,” Jesse M. Ehrenfeld, president of the American Medical Association, said in a statement before the decision was issued. “We cannot back down from efforts to boost the growing representation of talented and highly qualified medical students from historically marginalized groups.”

The decision will harm efforts to mitigate the country’s massive racial and health disparities, said Lee Jones, the dean of medical education at the Georgetown University School of Medicine, who noted that Black residents in Washington D.C. live more than 15 years less than white residents.

“There is an incredibly well documented body of literature that shows that the best, and indeed perhaps the only way, to give outstanding care to our marginalized communities is to have physicians that look like them, and come from their backgrounds and understand exactly what is going on with them, he said in a recently released video series exploring what the court’s decision may mean for medicine.

The toll could be steep. In California, where race was banned from admissions decisions in 1992, the number of Black and Hispanic students in colleges and medical schools dropped precipitously and did not recover for decades. The class entering the medical school at the University of California, San Diego in 1997 did not include a single Black student. The University of California’s president and chancellors submitted an amicus brief in the case that stated “despite nearly two decades of effort and experimentation with race-neutral admissions at UC, the university’s enrollment of underrepresented minority students falls short of reflecting the rich diversity of California’s population.”

Previous court decisions have upheld the use of affirmative action. In the 2016 Fisher v. University of Texas decision, the court ruled that the race-conscious admissions procedures used by UT were lawful under the Equal Protection Clause of the 14th amendment.

Unlike previous cases against affirmative action, which centered on white students who argued they had not been treated fairly in the admissions process, the two new cases were brought on behalf of Asian American students, with the claim that their admissions chances are harmed by affirmative action policies. One news story that went viral this week centered on an Asian American student who was upset after being rejected by six elite universities despite having a nearly perfect SAT score and high GPA. (Many debunked his claim as being irrelevant; one school that rejected the student — UC Berkeley — does not even consider SAT scores and the other top-tier schools named regularly reject students with perfect SAT scores.)

In medical schools today, more than 20% of graduates are Asian, despite being just 7% of the population, while 6% are Black, despite being more than 13% of the population.

One of the groups most severely underrepresented include Indigenous physicians. “American Indian and Alaska Native physicians are less than 1% of the physician workforce, manyfold lower than our 3% of the total U.S. population,” said Siobhan Wescott, the Susan and Susette La Flesche Professor of American Indian Health at the University of Nebraska Medical Center. “If Native physicians are less than one percentage point of the physician workforce with affirmative action in place, imagine how much more marginalized we might become without affirmative action.”

“American Indian and Alaska Native physicians are less than a percent of the physician workforce, many fold lower than our 3% of the total US population. If Native physicians are less than one percentage point of the physician workforce with affirmative action in place, imagine how much more marginalized we might become without affirmative action.”

Polls show that 69% of Asian Americans favor affirmative action and at least one study showed that Asian Americans are likely to benefit, not suffer, when race is used as a factor in admissions decisions at highly selective colleges. A poll released in May found 63% of Americans said the court should allow colleges to consider race in admissions but that race should not play a major deciding role. (In the general population, an AP poll released in May found 63% of Americans said the court should allow colleges to consider race in admissions but that race should not play a major deciding role. Meanwhile, a recent CBS poll found that while a majority of Americans say they thought affirmative action should continue, 70% said it should not be a factor in college admissions.)

Many people cite the statistic that Asian Americans need to score 140 points higher on the SAT than others to gain admission into college, but that number has been thoroughly debunked, scholar Janelle Wong and author Viet Thanh Nguyen wrote in an op-ed this week, arguing that the SAT itself is a flawed indicator of merit because it heavily favors those with high incomes and highly educated parents. Furthermore, they argued, pitting Asian American students against others distracts from the larger problem of a college and medical school admission process that favors the already advantaged.

The use of Asian Americans who are held up as proof that hard work leads to success in American and that no assistance like affirmative action is needed has “been weaponized to delegitimize critiques of the U.S. as a white supremacist and anti-Black society,” Eugin Park, an assistant professor at Stanford’s Graduate School of Education, wrote in an analysis earlier this week.

Earlier this summer, the American College of Medical Schools joined 14 other health care education groups to file an amicus brief with the Supreme Court arguing strenuously in favor of affirmative action for medical schools as a national health care imperative. “As an overwhelming body of scientific research compiled over decades confirms, diversity literally saves lives by ensuring that the Nation’s increasingly diverse population will be served by healthcare professionals competent to meet its needs,” they wrote.

It is likely that medical schools will now need to turn to alternative strategies, such as class-based admission, or a focus on students who come from disadvantaged neighborhoods, to continue to diversify the ranks of their students. Such an approach has worked at UC Davis, which graduates remarkably diverse classes of new doctors, despite a longstanding affirmative action ban in California, but has only been able to do so after more than a decade of painstaking work in reimaging both how admissions is run and how students from diverse backgrounds are supported.