Six Tory judges voted to end the measures, intended to promote diversity and repair decades of segregation.
The end of measures resulting from the struggle for civil rights in the United States? A year after having revoked the constitutional right to abortion, the American Supreme Court put an end, Thursday, June 29, to university programs of positive discrimination taking into account the skin color or ethnicity of applicants. Six conservative judges voted to end the measures, which they deemed to violate the equal protection clause of the 14th Amendment to the United States Constitution. On the contrary, three progressive judges defended these positive discrimination measures, which aim to improve the representation of minorities in educational institutions and on the labor market.
1What were these measures?
During the 1960s, against the backdrop of civil rights struggles, American universities began to launch programs aimed at improving student diversity and repairing decades of segregation. As explained by the American site Vox, establishments have, for example, begun to recruit more black students from high schools hitherto ignored by these universities. Positive discrimination measures linked to racial identity have therefore existed for more than 50 years across the Atlantic.
In 1978, the case Regents of the University of California v. Bakke gave rise to a judgment of the Supreme Court on the subject of positive discrimination. It ruled that racial identity could be taken into account among other criteria in admissions processes, but that a quota system excluding applicants on the basis of racial identity constituted discrimination, explains Cornell University School of Law.
All American universities do not necessarily take into account the racial identity of their applicants in admissions decisions, recalls Vox. Nine American states, including California, Florida, Michigan and Washington, had already banned any racial consideration in university admissions.
2What did the judges decide?
The Supreme Court ruled on two complaints filed in 2014 by the organization Students for Fair Admissions (“Students for fair admissions”), against the universities of Harvard and North Carolina. As the Vox site points out, this campaign was led by the white conservative Edward Blum, who filed more than twenty complaints – in particular against positive discrimination measures.
In the lawsuit filed against Harvard, Students for Fair Admissions alleges that the university, through its selection policies taking into account the racial identity of applicants, discriminates against young Asian Americans. The allegations are similar against the University of North Carolina: for the organization, there is with these measures a preference for certain minorities, in particular in favor of black and Hispanic candidates.
The highest American judicial authority agreed with them. “The student should be treated on the basis of their experience as an individual, not on the basis of racial identity”said Justice John Roberts, president of the Supreme Court, in the decision of the highest American court.
“Many universities have for too long (…) erroneously concluded that the cornerstone of an individual’s identity is not the challenges overcome, the skills acquired or the lessons learned, but the color of their skin. .”
John Roberts, President of the Supreme Courtin the decision
In its judgment, the institution recalls having authorized admissions on the basis of racial criteria “within tight restrictions”. In the eyes of the conservative judges, the positive discrimination measures of the universities cited, even if they were “well-meaning” have failed to meet these restrictions and should be invalidated.
3What effects has positive discrimination had?
Between 1976 and 2008, black students’ share of undergraduate college enrollment rose from 10 percent to 13.9 percent, according to the National Center for Education Statistics. The share of Hispanic students in enrollment over the same period rose from 3.7 to 12.9%, and that of Native Americans from 0.7% to 1.1%.
However, in 2017, the New York Times showed that positive discrimination measures had limited effects in the most prestigious institutions. According to this analysis of the daily, the share of black students in first year, in a series of elite universities, has hardly changed since 1980. In the mid-2010s, they made up 6% of first-year students. in college, but 15% of college-age Americans. The share of Hispanic first-year students has increased more, but not at the level of the demographic evolution of this population.
In states that have banned affirmative action, we see “a persistent decline in the share of underrepresented minorities among students admitted and enrolled in flagship public universities”according to a recent study* cited by Vox. Example in California, where the University of California at Berkeley had only 3% of black students in 2017, against 6% in 1980. The scenario repeated itself at the University of Michigan: there were 4% of black students enrolling in undergraduates in 2021, up from 7% in 2006, reports the New York Times.
4What will universities be able to do now?
In the Supreme Court ruling, Justice John Roberts clarified that “Nothing in this advisory should be construed to prohibit universities from considering an applicant’s comments about how racial identity has affected their life.” Universities could therefore use this opening, and Harvard has already expressed its intention to do so.
As Vox points out, establishments could also decide to no longer require results for certain tests in their admission procedures. They could also continue to ensure socio-economic diversity in their workforce, which would make it possible to maintain the representation of minorities, often less privileged.
However, these alternatives are likely to be less effective than clear positive discrimination measures. Studies cited by Vox show that, regardless of income level, white students remain twice as likely as black students to attend a selective university.
5What are the political reactions?
US President Joe Biden has expressed his “deep disagreement” and his “disappointment” in the face of the Supreme Court ruling. “We can’t let her have the last word”he pleaded. “Today’s decision will affect our country for decades to come”also reacted Kamala Harris, the vice-president of the United States, evoking “a step backwards for our Nation”.
In the Republican camp, which is much more critical of positive discrimination, former President Donald Trump mentioned “a great day for America” because “we are returning to a system based on merit”. “Candidates should not be judged on their racial or ethnic identity”said in turn the Republican Governor of Florida, Ron DeSantis, another candidate for the presidential election of 2024.