The Supreme Court’s 2022–23 term 

Part One: Affirmative action


On June 30, the Supreme Court ended its 2022–23 term. Some of its most consequential decisions were announced in June, including banning affirmative action in college admissions, championing religious liberty over public accommodations, and ending the Biden administration’s student loan debt forgiveness plan. 

The justices also upheld a section of the 1965 Voting Rights Act, compelling Alabama to create a second majority-minority congressional district. And, as I wrote earlier in the MV Times, they rejected a challenge to the constitutionality of a major Native American law and thus required the placement of children with native adoptive or foster-care parents. They rejected the peculiar state legislature doctrine, and restored President Biden’s immigration authority. 

In this first part of a series reviewing the term, we begin with an assessment of the decision by the court’s six conservative justices banning affirmative action admissions programs at Harvard University and the University of North Carolina. The outcome affects all Black, brown, and indigenous minority applicants, including those on the Island, who apply to private and public institutions of higher education, especially the most selective ones.

Initially designed to overcome the effects of past discrimination, by the late 1970s the focus changed to racial and ethnic diversity. Writing for the court in the 1978 foundation case Regents of the University of California v. Bakke, Justice Lewis Powell ruled that diversity “clearly is a constitutionally permissible goal for an institution of higher education.”

Since then, many college admission officers have used race as one factor among several to assess an application. Their goal is to create a class of students who will become accustomed to working and associating with a diverse group of people.

But no longer. Now, all previous Supreme Court precedents concerning race-conscious admissions are overruled.

A group funded by conservative activist Edward Blum challenged the practice in Students for Fair Admissions v. Harvard College and won. The decision will mainly affect the most competitive institutions of higher education, because most applicants are accepted at some college or university; Harvard, for example, accepts just 4 percent of those applying to the school, whereas the University of Massachusetts, Dartmouth, accepts 92 percent.

Chief Justice John Roberts’s majority opinion echoed words he wrote in a 2007 decision overturning an affirmative action program in a Seattle school district: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” In June’s decision, he held that colleges and universities “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.”

Roberts left the door open for applicants to write their college essays focusing on challenges, even racial ones, they have faced and overcome. And he exempted the service academies, like the U.S. Naval Academy and West Point, permitting them to continue to use race as one factor in their admissions programs. He was apparently impressed by a brief filed by 35 former military leaders who argued that this program helped the U.S. military achieve its goal of a diverse officer corps. Without such a corps, they contended, American national security could be undermined.

In her impassioned dissent, Justice Sonia Sotomayor noted that “today, this court stands in the way and rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits. In so holding, the court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.”

From now on, admissions officers must use other factors, such as geography and socioeconomic status, to determine how to diversify their student bodies. Many observers have concluded these have not worked as well as using race in the nine states that banned the practice for their public colleges and universities.

But now, these officers have no alternative.

Meanwhile, the next chapter in halting race-conscious admissions has started as a new lawsuit filed by a liberal group against Harvard, demanding an end to its legacy and donor-related admissions: They argue they have a racially discriminatory effect. According to the Boston Globe, “a National Bureau of Economic Research analysis of Harvard admissions from 2014 to 2019 similarly concluded that the relatives of wealthy donors were nearly seven times more likely to be admitted than nondonor-related applicants; meanwhile, the children and relatives of alumni were nearly six times more likely to be admitted.” Most donors and alumni are white.

For consistency’s sake, the six conservative justices may ironically be drawn into supporting the liberal side of this thinking.


Next in the series: Religion versus equality


Jack Fruchtman, who lives in Aquinnah, is preparing a fourth edition of “The Supreme Court and Constitutional Law.”