A declarative decision on affirmative action

Fifteen years ago, when the Supreme Court struck down a plan for “racial balancing” in a school, Chief Justice John Roberts memorably wrote: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” That constitutional principle will finally be applied to colleges and universities with today’s landmark ruling in Students for Fair Admissions v. the University of North Carolina.

Affirmative action never settled comfortably at the Supreme Court. When the court confronted its first higher education case, University of California v. Bakke, in 1978, the nine justices produced six opinions, and the court in essence fractured 4-1-4. That middle opinion, by Justice Lewis Powell, said affirmative action could go forward, even while expressing skepticism and the need for limits. That same spirit returned in 2003, in Grutter v. Bollinger, and 2013, in Fisher v. the University of Texas, as the justices wrestled with the Constitution’s promise of equal treatment regardless of race in a nation that historically discriminated against African-Americans.

In Grutter, the justices essentially compromised with themselves, telling colleges that they could use race in admissions to achieve racially diverse student bodies, but only as part of a “wholistic” admissions analysis. A college could not simply assign an extra ten points on its admissions scale for checking the right racial box, just like an applicant might get an extra ten points for a perfect SAT score. Of course, colleges were more than happy to run with the rope the court gave them, actualizing their idealized incoming classes behind the closed doors of the admissions committee’s discussions rather than on paper with points assigned. As the court says in its opinion today, “The universities’ main response to these criticisms is ‘trust us.’”

That answer is no longer sufficient. The court has now seen through the charade, as 20 years after the justices first turned down the straight points system, nothing seems to have changed in admissions. Instead, Chief Justice Roberts along with his conservative colleagues laid down a strong rule: “eliminating racial discrimination means eliminating all of it.”

Going back to the history of the Fourteenth Amendment, adopted in the wake of the Civil War, the court found a basic principle that motivated the Reconstruction Republicans: “not [to] permit any distinctions of law based on race or color.” The court is honest in recognizing the country abandoned that principle when Reconstruction ended, leading to “separate but equal” and the segregated South. The country started to turn that corner with Brown v. Board of Education, which held that “a public education ‘must be made available to all on equal terms.’”

Up until today, however, a public education at the University of North Carolina was not available to all on equal terms. Some had special access, and that access was based on race. The court squarely holds that this special access based on race violates the core constitutional guarantee, that agencies of government, including public universities, cannot permit distinctions based on race or color. The same rule applies to private universities like Harvard, the other defendant in the case, through Title VI of the Civil Rights Act.

This ruling will have ramifications far beyond higher education. Affirmative action is a fact of life in much of American life, from hiring in the Fortune 500 to government contracting. If anything, affirmative action in many ways seems almost quaint compared to the woke diversity, equity, and inclusion (DEI) agenda of today, which insists on far more than a slight bump on a college admissions application. But for these other industries beyond higher education that continue to have explicit racial preferences built into their hiring and contracting, we will see many more lawsuits soon based on today’s ruling.

Justice Ruth Bader Ginsburg once referred to affirmative action as “positive discrimination.” Yet discrimination—treating people differently based on race—is wrong regardless of motive. We have a colorblind Constitution. As Justice Antonin Scalia once wrote, “In the eyes of government, we are just one race here. It is American.” This decision says the same must now be true in the eyes of colleges and universities when it comes to their admission policies.