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At long last, the Supreme Court has said: “enough.” In a 6–3 decision this morning, the nation’s highest court told its oldest private and public universities, Harvard and the University of North Carolina, that they could no longer discriminate based on race.
Today’s decision comes just ten days before the 155th anniversary of the Fourteenth Amendment to the Constitution—the second of the three great post–Civil War amendments intended to free the slaves and ensure their civil and voting rights. It comes three days before the start of the 60th year of the 1964 Civil Rights Act, which Congress enacted to make that amendment’s promise a reality. And it comes just one day after the 45th anniversary of the Supreme Court’s earlier affirmative-action decision in Regents of the University of California v. Bakke, which stood out as the lone remaining blot on the anti-race-discrimination landscape, once earlier Courts had cleared away their predecessors’ ill-considered opinions gutting the Fourteenth Amendment and allowing government actions dividing Americans by race.
The Bakke decision reflected a divided view of the Fourteenth Amendment’s meaning, still reflected in today’s opinions. Four of the Bakke justices (the minority) viewed a California public university’s race-discriminatory “affirmative-action” program as violating Title VI of the Civil Rights Act, prohibiting educational institutions that received federal money from “discrimination” “on the grounds of race, color, or national origin.” Title VI is what makes a private institution taking federal funds, like Harvard, on the hook for its affirmative action policies. The Supreme Court treats the Civil Rights Act’s prohibition against race discrimination as identical to the Fourteenth Amendment’s, notwithstanding textual variation.
Though the five remaining justices in Bakke rejected the view that Title VI foreclosed universities receiving federal funds from racially discriminating, they didn’t otherwise agree among themselves. Four saw California’s race discrimination as defensible, under law and statute, given the long history of social and governmental discrimination that had disadvantaged black Americans. (That’s essentially the rationale underlying today’s lengthy dissents by Justices Sonia Sotomayor and Ketanji Brown Jackson, each joined by Justice Elena Kagan.)
The ninth justice in Bakke, Lewis Powell, stood in the middle. For Powell, societal discrimination was insufficient justification for sweeping governmental race discrimination—which the Court normally permits only when “narrowly tailored to achieve a compelling state interest.” Yet, in Powell’s view, student body “diversity” was sufficiently important to universities’ missions to clear that otherwise high legal hurdle. No other justice agreed with Powell’s original rationale, but it framed lower court decisions wrestling with subsequent affirmative-action challenges. Ultimately, a narrow majority of Supreme Court justices upheld a version of the diversity rationale in Grutter v. Bollinger (2003) and Fisher v. University of Texas (2016).
The diversity rationale always contrasted sharply with the only other rationales under which the modern Supreme Court has countenanced race-based government discrimination: to remediate “specific, identified instances of past discrimination that violated the Constitution” or to quell a prison riot. Though Justice Sotomayor nods to diversity in her dissent, she only refers to Powell’s Bakke opinion once, as Chief Justice John Roberts notes in his opinion for the six-member majority of the Court. Justice Jackson’s separate dissent ignores Powell’s Bakke opinion altogether.
Though modern university administrators have publicly embraced the rationale like a religious creed, it has always been mostly a fiction. Consider that trial testimony in this case showed that Harvard had “23 times as many rich kids on campus as poor kids.” And elite university administrators have hardly shown any interest in admitting a higher percentage of, say, conservative students to give others exposure to their views. The universities’ desire for diversity, in practice, has been little more than skin deep.
Moreover, as the Court’s majority observes, the diversity rationale rests on “pernicious stereotypes.” To meet their implicit racial quotas, colleges and universities have relied on a racialized concept of personality—tacitly assuming that race was a reliable marker for the attributes and experiences they purportedly wanted students to bring to their campuses. But—believe it or not—people’s opinions and ideas don’t track crude racial identifications. We, the authors, have very different backgrounds. One of us is a white man from the South, the son of a retired manufacturing and banking executive. The other, a first-generation American of Latino descent from Brooklyn, is the son of a retired police detective. Yet, if we had written separate mock legal opinions on today’s decision, they would have reached similar conclusions.
None of this is to say that having a diverse student body isn’t a worthy goal for educational institutions. But asking students to check a “race” box predicts nothing substantive about how those students see the world that couldn’t be discovered by asking other questions that don’t take race into account. If institutions like Harvard and UNC want to ensure that incoming classes include students of varying life experiences, they can keep doing so, as the Court’s majority opinion emphasized—they just can’t do it by using race as a proxy.
And what of societal discrimination, the preferred rationale of the original Bakke dissenters? No one disagrees that it exists—and in the past, horrifically so. Past and present discrimination helps explain the disparate group-based social outcomes highlighted in today’s dissents. Still, there’s a reason why the Court has consistently viewed remedial discrimination as necessarily narrow, focused, and limited in time. As Justice Clarence Thomas observes in his concurring opinion today, “racial groups are heterogeneous, and blacks are no exception—encompassing northerners and southerners, rich and poor, and recent immigrants and descendants of slaves.” Consider that the one of us who grew up wealthy and white is married to a black woman. It is patently absurd to argue that his slave-descended children—or his well-off co-author’s Latino children—deserve a “remedial” advantage over peers growing up in single-parent households in trailer parks or housing projects, based on some caste-style vision of racial justice.
Today’s decision doesn’t force universities to allocate scarce student slots based on random draw or a strict numbers-based regime, as in many European systems. American universities will retain some measure of freedom to craft admissions policies that consider special talents, circumstances, and markers of resilience in applicants’ backgrounds. Many schools will doubtless try to use that freedom to replicate the race-based outcomes they seem to prefer. More litigation will doubtless follow.
But make no mistake: today’s decision is a monumental step toward ending America’s long history of discriminating on the basis of race. When a narrow Supreme Court majority upheld race-based affirmative action in Grutter 20 years ago, it noted its expectation “that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” As a matter of predictive sociology, the Court was somewhat obtuse. But as a matter of law, that expectation proved prescient. As the Court’s majority points out today, its holding will first affect the coming year’s cycle of college applicants—those scheduled to graduate in 2028, exactly 25 years past Grutter. For that, there’s reason to celebrate.
Photo by Alex Wong/Getty Images