“With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat. But deeming race irrelevant in law does not make it so in life,” Justice Ketanji Brown Jackson wrote in a blistering dissent. “If the colleges of this country are required to ignore a thing that matters, it will not just go away. It will take longer for racism to leave us. And, ultimately, ignoring race just makes it matter more.”
The majority opinion, written by Chief Justice John G. Roberts Jr., does not say outright that the court is overturning its precedents, which allowed race to be one of the factors that universities take into account in admissions decisions. But the other justices who wrote in thunderous concurrence or dissent are certainly under the impression that this is a far-reaching ruling, with broad implications. I shudder to imagine how far the court will go in this direction.
In brief remarks criticizing the ruling, President Biden highlighted a passage in which Roberts seemed to leave the admissions door open just a crack: Nothing in his opinion, Roberts wrote, “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.”
Unfortunately, Roberts appears to slam the door shut again in the very next sentence, decreeing that “universities may not simply establish through application essays or other means the regime we hold unlawful today. … What cannot be done directly cannot be done indirectly.”
The schools that were successfully sued for practicing affirmative action, Harvard University and the University of North Carolina, argued that using race as one of many admissions factors allowed for a diverse student body — which benefits not just African American and Hispanic students but White and Asian American students as well. Roberts wrote that those benefits cannot be adequately measured or assessed.
The more important reasons to continue affirmative action, though, are America’s past and America’s present.
When I was growing up, my state’s prestigious universities, the University of South Carolina and Clemson University, both had highly effective affirmative action programs — favoring White applicants — that were based on an absolute, inflexible quota system: no Black people allowed. African Americans in this country were subjected to 2½ centuries of slavery, followed by a century of discrimination and Jim Crow repression — followed by roughly a half-century of affirmative action “lite” that could not be based on numerical quotas or structured as redress for generations of exclusion.
Jackson’s dissent gets to this history. “The flagship educational institution of a former Confederate State has embraced its constitutional obligation to afford genuine equal protection to applicants,” she wrote. “Surely that is progress for a university that once engaged in the kind of patently offensive race-dominated admissions process that the majority decries.”
UNC’s policy of treating race “as merely one aspect of an applicant’s life” just reflected “the reality that Black students have only relatively recently been permitted to get into the admissions game at all,” she wrote. Her dissent cites facts and figures to illustrate how discrimination has produced racial gaps in income, wealth and opportunity that persist to the present day.
She must have hit a nerve, because Justice Clarence Thomas used many pages of his concurring opinion to attack Jackson, accusing her of using “broad observations about statistical relationships between race and select measures of health, wealth, and well-being to label all blacks as victims.”
Like Roberts, Thomas reads the 14th Amendment’s guarantee of equal protection as pristinely race-neutral. In fact, the amendment was entirely race-conscious: Its aim was to guarantee constitutional rights for formerly enslaved African Americans. If the Supreme Court’s conservatives were serious about their “originalist” views, they would understand that the amendment was intended to right a wrong that still poisons our society.
I have some hope that universities will still look for ways to ensure diversity on their campuses, perhaps by testing whether there is wiggle room in Roberts’s ambiguity about application essays. I have very little hope, though, that these justices will desist in their attempts to march our society headlong into the past. For the foreseeable future, progress toward a more just society will be made in spite of the Supreme Court.
