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The Supreme Court’s decision in Students for Fair Admissions v. Harvard is at once revolutionary and predictable: revolutionary, because it bans affirmative action as we know it; and predictable, in the sense that it’s exactly what everyone expected from the conservative-leaning high court.
Chief Justice John Roberts, in his 6–3 majority opinion, makes it clear that things will have to change at the nation’s selective colleges. No longer may colleges offer vague, unmeasurable notions of “diversity” as an excuse for intentional racial discrimination. But the ball is now in the universities’ court. The status quo won’t continue, but it’s an open question what can, and will, replace it.
The decision addresses two cases that were argued separately: one challenging affirmative action at the University of North Carolina, a public school; the other addressing racial preferences at the private Harvard. The plaintiffs alleged that the Fourteenth Amendment’s guarantee of “equal protection of the laws” barred public schools from racial discrimination, and that the Civil Rights Act of 1964 similarly banned discrimination at any school that receives federal funds (which is most of them, public and private).
Indeed, that statute’s language is so clear that some analysts suggested there was no need to look at the Constitution at all: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
Several previous decisions, however, dating back to 1978’s Bakke v. University of California, had let schools use affirmative action to promote racial diversity on campus. The educational benefits of diversity, the reasoning went, are compelling enough to survive “strict scrutiny” under the Equal Protection Clause. And even though the Civil Rights Act would seem to ban discrimination unambiguously, using entirely different language, the Court held that the law did nothing more than restate the constitutional standard. In 2003’s Grutter v. Bollinger, the Court again allowed colleges to use race, but cautioned that such policies must not “unduly harm nonminority applicants” and announced an expectation that such preferences would not be needed in another 25 years.
As if to soften the blows, Roberts spins Grutter a bit while obliterating it. “[W]e have permitted race-based admissions only within the confines of narrow restrictions,” he contends. “University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and—at some point—they must end.”
He proceeded to apply what a concurrence from Clarence Thomas calls “genuine strict scrutiny”—refusing to accept schools’ vague justifications for their use of race (such as helping students “adapt to an increasingly pluralistic society”) and noting the somewhat haphazard nature of the racial categories that universities and everyone else relies on. Roberts further points out that, since college admissions are zero-sum, it’s mathematically impossible for race to be a “positive” for some applicants without being a “negative” for others. And he argues that, while schools claim affirmative action could end when campuses are diverse enough without it, there’s “no reason to believe that respondents will—even acting in good faith—comply with the Equal Protection Clause any time soon.”
As for that unambiguous statutory language? Alas, it’s once again swept under the rug, except in a concurrence from Justice Neil Gorsuch. No party in the case asked for a reconsideration of the idea that the statute merely applies the Equal Protection Clause to private schools receiving federal funds, Roberts points out in a footnote.
The decision doesn’t come out and say that no college admissions official can think about race in any way, shape, or form. To the contrary, it notes that schools are free to consider essays in which students discuss how race has affected their lives, and even points out that, for example, military schools might have unique reasons for preferences (which would need to be handled in a future case).
But if this case leaves any future for affirmative action, that future will be very different from the past. Roberts’s analysis of Harvard’s and UNC’s policies, reaching the firm conclusion that they are illegal, will apply to just about any race-conscious affirmative-action regime that exists, and probably to any that might be dreamed up, throughout the country—at least so long as the Court itself remains in conservative hands, ready to reapply faithfully that analysis in future cases.
Where can we expect colleges to go after this? That’s the subject of an issue brief I recently published with the Manhattan Institute. College administrators are fierce supporters of affirmative action, and some will almost certainly defy the ruling outright, continuing to treat individual applicants differently depending on their race. Others, though, will turn to so-called “race-neutral alternatives,” polices that do not explicitly consider race but nonetheless are designed for the purpose of achieving racial diversity.
These include “percent plans”—where the top, say, 10 percent of every high school’s graduating class might have guaranteed admission to a public school, regardless of their test scores or other qualifications—as well as preferences based on socioeconomic status. The former effectively leverage segregation at the high school level to diversify college campuses; the latter can extend far beyond simple preferences based on income, meeting racial goals through the careful addition of variables such as wealth, family structure, and neighborhood.
Race-neutral alternatives have wide support across the political spectrum. They focus preferences on those facing concrete disadvantages, rather than granting valuable college-admissions slots based directly in skin color.
But they contain important pitfalls as well. One is mathematical: if a school’s actual goal is to have, say, 30 percent black and Hispanic enrollment, the most efficient way to do that is to consider race directly—grant preferences only to the number of black and Hispanic students needed to hit the target. By contrast, if a school tries to hit 30 percent black and Hispanic enrollment through preferences that other students are also eligible for, it will have to use heavier preferences to get the same result. To the extent that “mismatch” between students admitted through preferences and their peers is a problem, it could actually grow worse after affirmative action.
Another pitfall is legal and ethical. In general, courts and the general public don’t respond well when someone wants to discriminate by race, finds himself banned from doing so, and then intentionally crafts his decision-making process to achieve his desired racial result by “race-neutral” means. Indeed, policies with a “disparate impact” can sometimes get decisionmakers in trouble even when the disparity did not occur by design.
Going forward, courts will face thorny questions regarding exactly how far schools may go in their pursuit of diversity through ostensibly race-neutral means, and how blunt they may be about their true desires. At the high school level—where legal standards for the use of race have historically been stricter—an important test case involves northern Virginia’s elite Thomas Jefferson magnet school, whose leaders lamented the results of its previous academics-focused admissions process, then switched to a new process that admitted fewer Asians.
Historically, many colleges in states that banned affirmative action were able to restore their previous demographic mixes through other policies. Some of the most selective colleges, however, are among the biggest exceptions, perhaps because they were unwilling to lower their overall standards as much as they’d have needed to. Both Harvard and UNC defended their use of race in part by claiming that any alternative either would not meet their diversity goals or would reduce their academic selectivity too much.
But is elite schools’ commitment to intense selectivity changing? A movement to end standardized testing has gained much ground, and the Covid-19 pandemic forced most schools across the country to give test-optional admissions a try. As a result, schools today may simply be more willing to remove traditional qualifications from their processes, giving them more room to achieve racial goals with race-neutral processes. Harvard itself has announced it will be test-optional through at least the fall 2026 admissions process, UNC through the fall 2024 one. This obviously isn’t just about Covid anymore.
SFFA itself contains some speculation about this future. In her dissent, Justice Sonia Sotomayor writes that “[a]lthough the Court has stripped out almost all uses of race in college admissions, universities can and should continue to use all available tools to meet society’s needs for diversity in education.” The majority opinion, though, asserts that “universities may not simply establish through application essays or other means the regime we hold unlawful today.”
Only time will tell where future decisions, by college administrators and courts alike, will take us. For now, the Supreme Court has made it clear that university admissions departments are not allowed to discriminate by race on the vague basis that diversity is good.
Photo by OLIVIER DOULIERY/AFP via Getty Images