Q&A with Deborah Archer: The Supreme Court banned affirmative action—what now?

The US Supreme Court has struck down race-conscious admissions policies at Harvard University and the University of North Carolina, effectively banning affirmative action on college campuses nationwide. The much-anticipated decision came down on Thursday, June 29.

Last October, the Supreme Court heard two cases filed by Students For Fair Admissions (SFFA), both challenging the lawfulness of affirmative action at Harvard and the University of North Carolina. Affirmative action aims to address racial discrimination by recognizing and responding to the structural barriers that have denied underrepresented students access to higher education, and has been an integral part of many US college and university admissions policies since the 1960s and 70s. 

SFFA argued that the 14th Amendment’s Equal Rights provision makes race-conscious admissions policies illegal. The Court sided with SFFA in a 6-3 vote against UNC, and a 6-2 vote against Harvard. 

“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,” wrote Chief Justice John Roberts in the Court’s majority opinion. That means “race may never be used as a ‘negative’ and that it may not operate as a stereotype…. Our cases have stressed that an individual’s race may never be used against him in the admissions process.”

In a sharp dissent, Justice Sonia Sotomayor stated: “Today, this court overrules decades of precedent and imposes a superficial rule of race blindness on the Nation. The devastating impact of this decision cannot be overstated. The majority’s vision of race neutrality will entrench racial segregation in higher education because racial inequality will persist so long as it is ignored.”

NYU News spoke with Professor of Clinical Law and American Civil Liberties Union President Deborah Archer about the history of affirmative action, and how higher education institutions can continue to strive for diversity.

Deborah Archer portrait
Deborah Archer

What was your reaction to the phrasing of the majority opinion?

I think the Court got it all wrong. They misstate and distort how affirmative action works and the current reality of racism. Justice Roberts said “eliminating racial discrimination means eliminating all of it.” But it is racial discrimination that makes affirmative action programs necessary.

Affirmative action and race conscious admissions policies helped address our country’s long history of racial discrimination and systemic racial inequality by increasing access to higher education for underrepresented racial and ethnic groups who face systemic barriers and admissions criteria that capture and magnify racial bias. The Court’s decision is a devastating blow to efforts to expand access to higher education, to increasing access to opportunity, and to preparing future generations to learn, challenge, and build across the differences that have divided this country since its beginning. Justice Ketanji Brown Jackson spoke powerfully about this in her dissent.

Those racial divisions systematically lock students of color out of opportunities not only in higher education, but also in elementary and secondary education, housing, employment, and more, which all impact their access to the resources and opportunities that could increase their access to higher education. Those divisions still exist, yet the Supreme Court has adopted this view that affirmative action is no longer needed because America has moved beyond racist policies of the past. We haven’t – the tools may have evolved but the racially exclusionary impact remains.

Justice Sonia Sotomayor's dissent asserted that the Supreme Court's decision "cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter." How might Sotomayor's dissent—and those of the other two liberal judges, Ketanji Brown Jackson and Elena Kagan–be used in future advocacy attempts?

Pushing us into this colorblind paradigm is going to do real damage and set us back in a world that is undeniably shaped by race. Ignoring race does not make the reality of racial inequality go away. Race continues to constrain opportunities and life outcomes for some, and expand opportunities and outcomes for others. Color blindness will only make that worse. It will only exacerbate racial injustice and delay the vital work of grappling with the way race shapes access to opportunities. Ignoring race does not make racism go away.

Justice Sotomayor talked about the meaning of the 14th Amendment. The purpose of the 14th Amendment was not to ignore race in decision making. It was not to end race-consciousness. It was to end oppression. It was to end the political, economic, and social subjugation of people on the basis of their race. That is the goal of affirmative action. I hope that future advocacy efforts can help to reclaim the 14th Amendment as a tool for racial equity.

How was affirmative action previously implemented in college admissions processes?

Over the past 45 years, the US Supreme Court has repeatedly held that race-conscious admissions programs are constitutional, with substantial benefits that flow to individual students, the educational institution, and the larger society. The law—which has been clarified in Bakke, two cases against the University of Michigan, and two cases against the University of Texas—says that race can be one factor among many in a holistic admissions program, provided that it is narrowly tailored and there is no race-neutral alternative that would achieve the same results. This is how affirmative action is implemented today and how it is implemented at Harvard University and the University of North Carolina at Chapel Hill. 

In some states, they also use top-10 percent plans as part of their efforts to achieve a diverse class. With top-10 percent plans, high school students who graduate in the top 10 percent of their graduating class are guaranteed admission to the state’s public university. North Carolina is one of those states and its plan was at issue in the lawsuit against UNC-Chapel Hill. 

What do you consider the biggest misconception about affirmative action?

One widespread misconception is that affirmative action is a preference.  Affirmative action programs do not give a preference to any student because of their race. Preference is a loaded term and not an accurate one.  The law is clear that admissions programs cannot give automatic preferences or points or reserve spots for applicants of certain races.

Another misconception is that affirmative action is an exception to a merit-based system. Race-conscious admissions programs are still merit-based admissions programs. Holistic review encourages admissions officers to look beyond conventional credentials and also consider context for the credentials and achievements. 

Our underlying admissions practices are far from meritocratic. Many of the measures are better predictors of access to wealth than a student’s potential. And many students are admitted because they are the children of donors, alums, or faculty members. Moreover, racial inequality in K-12 schools feeds the racial inequality we see in higher education. Most K-12 schools are racially identifiable, and those racially identifiable schools do not have equal access to the resources and opportunities that are traditionally valued in the admissions process. 

How could banning race-conscious admissions policies for universities impact similar diversity efforts in the workplace?

This decision should be limited to higher education admissions. Corporations and other organizations should not read something into the decision that is not there.

However, affirmative action is ground zero in a larger fight around racial justice. It is one step in a much larger effort to impose a colorblind framework on all of society and to make it impossible for public policy to address the deep and profound racial inequality. Colorblindness is the antithesis of diversity and it exacerbates racial injustice by preventing all of us from grappling with the ways race shapes our lives, experiences, and opportunities. 

Are there other avenues for universities to strive for diversity post-affirmative action?

Nine states have prohibited the use of race and other protected characteristics in various settings, including university and college admissions. What institutions in those states have done is helpful and instructive in understanding what avenues could remain available to support diversity in higher education. Those efforts have included: Evaluating academic achievement in context; giving credit to students who have attended underserved and underrepresented schools; considering socioeconomic status and English language learner status; considering group or community demographics; and expanded outreach and recruitment efforts.

This interview has been edited and condensed. Posted on June 4, 2023 and updated on June 30, 2023