The landmark decisions that declared the consideration of race in higher education admissions unconstitutional upends decades of established admissions practices. In their dissents to Thursday’s opinion, the liberal justices suggest ways that the universities can continue considering race and ethnicity without, they claim, running afoul of the majority opinion. 

The principal dissenting opinion in Students For Fair Admissions v. Harvard University and Students for Fair Admissions v. University of North Carolina, authored by Justice Sonia Sotomayor and joined by the other liberal members of the court — Justice Ketanji Brown Jackson recused herself from the Harvard case — lays out the prospect of considering race moving forward. 

“Today’s decision leaves intact holistic college admissions and recruitment efforts that seek to enroll diverse classes without using racial classifications,” Justice Sotomayor writes. “Universities should continue to use those tools as best they can to recruit and admit students from different backgrounds based on all the other factors the Court’s opinion does not, and cannot, touch.”

“Colleges and universities can continue to consider socioeconomic diversity and to recruit and enroll students who are first-generation college applicants or who speak multiple languages, for example,” she continues, writing that considering the totality of an applicant could include mentioning race in an admissions essay, say, thus allowing admissions officers to consider those factors that make the applicant unique. 

Justice Sotomayor also espouses the virtue of considering the entirety of a student’s background, writing that “using class rank or standardized test scores as the only admissions criteria would severely undermine multidimensional diversity in higher education.” She writes that an applicant’s extracurricular activities, home life, and academic interests are central to the “full painting” of the applicant’s life. 

Chief Justice Roberts, in the majority, writes that applicants themselves could offer information about their race, ethnicity, and socioeconomic status as a supplemental aspect of their application. “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,” he writes. 

He also criticizes Justice Sotomayor’s assertion that schools could explicitly consider race as a qualifying, determinative factor during admissions considerations. 

“Universities may not simply establish through application essays or other means the regime we hold unlawful today,” he says, aiming squarely at his colleague. “A dissenting opinion is generally not the best source of legal advice on how to comply with the majority opinion,” Chief Justice Roberts rumbles.

The chief justice excludes from this decision the nation’s military academies, writing that those institutions’ admissions practices have not been challenged. “This opinion also does not address the issue, in light of the potentially distinct interests that military academies may present,” he writes. 

Justice Jackson also pens a 29-page dissenting opinion in the North Carolina case, noting that she agrees in full with her colleague, Justice Sotomayor, but wishes to write “separately to expound upon the universal benefits of considering race.”

Her dissent details the history of slavery, the Reconstruction amendments, and segregation, and how those practices have led to diminished economic, educational, and health outcomes for Black Americans. She tells the story of two hypothetical applicants to UNC — she calls them John and James — who both deserve consideration of their families’ histories. In this scenario, John is the white, would-be seventh-generation UNC student, and James is the first college student from a Black family. 

The high court is “turning back the clock” on progress toward greater parity in outcomes between races, Justice Jackson writes, saying her colleagues’ “myopic misunderstanding of what the Constitution permits” will halt progress made by the Black community in recent decades. 

Of particular note is the scathing criticism she reserves for Associate Justice Clarence Thomas, the only other Black member of the high court, and the concurring opinion he authored. Of his claims that racial quotas in admissions create greater benefits for Black students at the expense of other applicants, Justice Jackson writes in a footnote that her colleague “ignites too many more straw men to list, or fully extinguish” while he is “insisting that obvious truths be ignored.”

Justice Thomas criticizes her in turn, saying that she has no answer for how, say, a Chinese applicant should be treated in the admissions process given that Asian students must currently achieve much higher academic scores in order to have the same chance at admittance as their Black peers. 

Justice Jackson “seems to have no response — no explanation at all — for the people who will shoulder that burden” of understanding why one is denied entrance to an educational institution because of race, Justice Thomas argues, adding: “If such a burden would seem difficult to impose on a bright-eyed young person, that’s because it should be.”