Affirmative Action Ruling Is Perverse, Tragic, and Disingenuous

In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the US Supreme Court ruled that University of North Carolina’s and Harvard College’s consideration of race to create racially diverse student bodies violates the Constitution and federal civil rights laws. The decision invalidates virtually all governmental race-based decision-making in any context. The ruling is perverse, tragic, and seemingly disingenuous.

The ruling is perverse because it holds, in effect, that the Constitution’s guarantee of equality prohibits rectifying inequality. It’s simply impossible to remedy generations of racial oppression without proactively providing opportunities to members of the races that were oppressed.

As the experience of schools in states that ban racial preferences demonstrates, race-based affirmative action is necessary, though insufficient, to include historically excluded racial groups in the most competitive schools of higher education.

The ruling is tragic because racial inequality in America results from a long, unjust, and brutal history of racial oppression. That history, moreover, continues to cause people of color, especially those who are Black, Native American, and Latino, to experience disproportionate poverty, crime, poor health, and educational deprivation. America’s original sin continues to cause human suffering.

The ruling is seemingly disingenuous because its characterization of history and precedent is so unpersuasive as to leave the impression that the court is selective in its approach to constitutional interpretation depending on the court’s desired outcome.

Last term, in Dobbs v. Jackson Women’s Health Organization and New York State Rifle & Pistol Association v. Bruen, the court emphasized original meaning and history as the virtually exclusive bases for interpreting the Constitution, and it engaged in a lengthy historical discussion. The court in Dobbs did say that precedent is important but assured us that the strength and clarity of the historical record justified overturning Roe v. Wade.

In SFFA, by contrast, the court’s discussion of the Fourteenth Amendment’s history and original meaning was glancingly brief and selective. The court failed to grapple with historical evidence that race-consciousness by the federal government and the states continued after the Fourteenth Amendment’s ratification.

For example, all states in the South segregated higher education, with knowing congressional acquiescence, leaving Black people to attend far less resourced “negro” colleges. The court also did not engage with scholarship, even by conservative scholars, that documents the difficulty of proving that the Fourteenth Amendment mandated colorblindness.

Justice Clarence Thomas, for the first time in 30 years on the bench and numerous affirmative action cases, finally attempted an originalist case against affirmative action. Though more substantial than the majority’s discussion, it was also highly selective. Additionally, Thomas’s responses to historical points in the dissenting opinions were surprisingly weak.

The court’s use and characterization of precedent were patently inaccurate. The court purported to follow precedent despite applying a test that, if applied in prior cases from Regents of the University of California v. Bakke to Grutter v. Bollinger to Fisher v. University of Texas, would have reached different outcomes than those cases did. At least Thomas was forthright enough to admit that the court was, in effect, overruling precedent.

The saving grace is that the court has not foreclosed race-neutral measures to achieve racial diversity, including consideration of applicants’ racial experiences. As we know from schools in states that ban affirmative action, however, such measures are very expensive and fairly ineffective.

People of all races and political persuasions need to come together to design race-neutral measures that meaningfully enhance the educational opportunities of historically oppressed groups so that higher education—the most effective pathway to social mobility—benefits the full spectrum of Americans.

The case is Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, US, No. 20-1199, 6/29/23.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Kim Forde-Mazrui, the Mortimer M. Caplin Professor of Law at the University of Virginia, teaches and writes about race and equal protection law.

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