The Court Did Not “End” Affirmative Action. This Was Just a Skirmish

By George F. Will

In the 231 years since its first ruling, the Supreme Court has never sown more confusion than in the 45 years since it first ruled on the subject of race-based decisions in university admissions.

On Thursday, the court found Harvard and the University of North Carolina guilty of doing what the court’s earlier rulings have repeatedly given universities muddled semi-permission to do: ignore the 14th Amendment’s guarantee of “equal protection of the laws.”

The court did not “end” affirmative action. The court cannot stifle, by minutely policing, academia’s determination to continue administering racial preferences (and hence, necessarily, racial disadvantages). Thursday’s decision usefully affirms the principle of racial neutrality at a moment when public- and private-sector institutions are rejecting it.

But universities will respond to the court’s ruling by adopting more surreptitious and disguised preferences. This will deepen public cynicism about higher education, as its prestige leaks away.

Consider the path the court stumbled along to reach Thursday’s constitutionally correct ruling, one that reveals how unhelpful its prior rulings have been. In Bakke (1978), a fractured court held that in order to survive judicial “strict scrutiny,” racial preferences in admissions must be narrowly tailored to achieve only one permissible “compelling” interest: student body “diversity.”

Until Thursday, the court had flinched from saying that such diversity — as defined by universities, which simply need to assert its benefits — is so important that it justifies ignoring the 14th Amendment. Justice Lewis F. Powell Jr.’s controlling opinion in Bakke said a university should be free

“to make its own judgments as to education,” including “the selection of its student body.” The court thereby made a high principle of deferring to academia’s judgment about the necessity for racialist diversity policies.

This announced judicial deference effectively endorsed racialist policies. And it effectively nullified strict scrutiny. Bakke and subsequent cases actually made higher education the only U.S. enterprise immune from strict scrutiny of racialist policies.

There is a paucity of empirical evidence establishing what kind of diversity produces what kind of improved educational outcomes. Under the regnant ideology in academia, evidence is considered unnecessary. The benefits of (undefined) diversity are assumed. And the court-created “educational benefits” exception to the equal protection guarantee has meant that the diversity rationale for racial preferences is forever.

As Justice Sandra Day O’Connor and the rest of the court should have realized by 2003. Writing for the majority in the Grutter case from the University of Michigan, she said: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest [in diversity] approved today.” In Bakke and beyond, the court has said racial preferences could not be used to rectify consequences of past discrimination. But the court has not acknowledged the obvious: Because preferences cannot be remedial, they cannot be temporary. The urgency of diversity, however defined, never expires.

Progressives will struggle to ram Thursday’s ruling into their current narrative about the court jeopardizing its legitimacy with rulings counter to majority opinion (e.g., last June’s Dobbs decision overturning Roe v. Wade).

Leave aside the fact that the court, like the Constitution, is not a majoritarian device. But notice this: Racial preferences starkly divide academia from the public, 74% of which (including majorities of Democrats and Black Americans) opposes them.

To evade Thursday’s ruling, more universities might stop requiring applicants to take standardized tests (SAT/ ACT), instead using opaque “holistic” evaluations to discriminate against Asian Americans. Harvard used such evaluations in the 1920s to cut almost in half the Jewish portion of its enrollment. The New York Times, which supports racial preferences, has, however, reported in December that “many Asian American teenagers” have “for years” downplayed “aspects of their identity or changed their hobbies or interests” in order to seem “less Asian.” Evidence gathered before Thursday’s case reached the Supreme Court indicates that Harvard believed that if admissions were determined objectively, by secondary school transcripts and standardized tests, Harvard would be more than 40% Asian.

During oral argument in October, Harvard’s lawyer said that “for some highly qualified applicants” race can be “the determinative factor,” just as being an oboe player can be if the university’s orchestra needs one. Chief Justice John G. Roberts Jr. tartly responded: “We did not fight a civil war about oboe players. We did fight a civil war to eliminate racial discrimination.” Thursday’s ruling is a helpful skirmish in today’s intensifying struggle against progressives who, in the name of “equity,” seek not elimination but expansion of racial discrimination.