The End of Affirmative Action: The Latest in the Court’s Anti-Civil Rights Agenda
June 29, 2023
By Shahrzad Shams
Affirmative action has become the latest victim of the Supreme Court’s agenda to roll back major civil rights gains.
Today, in Students for Fair Admissions, Inc. (SFAI) v. Harvard and SFAI v. University of North Carolina (UNC), the Supreme Court effectively struck down affirmative action in higher education. Written by Chief Justice John Roberts, the decisions hold that both universities’ race-conscious admissions policies violate the 14th Amendment’s Equal Protection Clause. While the majority did not expressly overrule relevant precedent or formally deem all race-conscious policies unconstitutional, the practical effect of the decisions is that race can no longer be a factor in university admissions decisions.
The outcomes of today’s cases come after a long, gradual effort by conservative jurists to gut the constitutionality of race-conscious admissions policies. For decades, the conservative legal movement has framed affirmative action as a form of “reverse discrimination.” This distorted framing and the decisions reached by the court today are the product of a carefully crafted color-blind ideology that has dominated American jurisprudence in recent decades—one that equates distinctions made between racial groups for purposes of remediation with those made for purposes of subjugation. As evidenced by the court’s decision to effectively strike down affirmative action, this false equivalence impedes our progress toward racial justice and limits our ability to take meaningful action to address systemic racism.
Neither today’s decisions nor framing affirmative action as discrimination against non-Black applicants in the first place were inevitable. In fact, at its formal inception in the 1960s, affirmative action was adopted precisely because it was a policy that distinguished between racial groups; it was meant to serve as one way to explicitly remediate the ill effects of segregation that produced racial disparities in higher education and the workplace. In other words, affirmative action was intended to be a reparative policy—one that sought to undo the deleterious effects of the Jim Crow era.
And evidence suggests that it did just that. Affirmative action was successful in shrinking opportunity gaps and expanding access to spaces that have historically excluded certain groups. Throughout the 1960s and 1970s, colleges and universities around the country introduced affirmative action policies to their admissions processes. By 1982, the United States saw a 164 percent increase in the numbers of Black students enrolled in higher education institutions, compared to the 1970 national enrollment figures. To be sure, many factors could have been at play in explaining this increase. But researchers Theodore Cross and Robert Bruce Slater show that it was only after affirmative action programs were instituted in colleges and universities that Black Americans began to make substantial enrollment progress.
Despite evidence of its effectiveness, shortly after affirmative action entered the policy scene in the 1960s, it faced challenge after challenge in the nation’s highest court. The first seminal affirmative action case was decided in 1978, in Regents of University of California v. Bakke. The case established that, while strict racial quotas are impermissible in the university admissions context, race can be used as one factor in the admissions decision-making process in order to enhance diversity.
In the decades following Bakke, other Supreme Court decisions continued to undermine the potential of affirmative action policies to address the nation’s legacy of racial inequality. As the court continued to chip away at the permissible legal rationales for race-conscious admissions policies, affirmative action became increasingly less impactful as a reparative policy. Even before today, affirmative action had already been reduced to a mere tool for expanding diversity and multiculturalism in universities and colleges around the country, thereby providing educational benefits—a rationale that, according to researchers, aligns with the preferences and favorable relative outcomes of white students, rather than racial minorities.
But even that rationale no longer suffices after today’s decision. The court’s majority reasons that race-neutral alternatives to affirmative action will be sufficient in achieving “the same benefits of racial harmony and equality without any of the burdens and strife generated by affirmative action.” But colleges and universities in states that have banned affirmative action show that the reality has played out quite differently. In an amicus brief filed in support of Harvard and UNC by the University of Michigan—a state that restricted consideration of race in admissions decisions in 2006—university officials noted a substantial and persistent drop in minority enrollment, with Black enrollment plummeting by 44 percent, and Native American enrollment by a staggering 90 percent. According to the brief, these reductions in minority enrollment came despite the implementation of race-neutral alternatives: “[D]espite U-M’s demonstrated commitment to student body diversity, and despite having spent more than a decade successfully enrolling substantially more socio-economically disadvantaged students, race-neutral admissions policies have not significantly increased enrollment of underrepresented minorities.”
Other states that have banned affirmative action have witnessed similarly persistent reductions in the share of minority students admitted to public universities. In California, affirmative action was banned in public institutions in 1996 with the passage of Proposition 209. Before the ban, the underrepresentation gap at University of California, Berkeley, was 14.9 percent. The year after California effectively outlawed affirmative action, the underrepresentation gap grew to 24.9 percent. By 2015, it had reached 34.4 percent.
In Grutter v. Bollinger, a 2003 case in which affirmative action was narrowly upheld, the court stated that “race-conscious policies must be limited in time” and that the use of “racial preferences” would likely not be necessary in 25 years. Even a good-faith understanding of that prediction is preposterous, but 20 years later, the court’s majority in today’s decisions uses Grutter to strike down Harvard and UNC’s programs for failing to have a “logical end point.” In doing so, it conveniently ignores the fact that Black students continue to face disproportionate barriers to higher education and remain underrepresented in postsecondary education, with the exception of enrollment in for-profit colleges, where Black students are overrepresented—itself a problematic development, as research shows that for-profit colleges regularly use predatory practices to target communities of color in recruitment efforts. Moreover, the value of these for-profit programs are often dubious, and because of their higher price tag, leave students with greater debt than attendance at public universities would. Now that affirmative action has effectively been struck down, we can expect racial disparities in college admissions to grow further and further away from the demographic makeup of the nation.
While the cases decided today relate to higher education, the court’s decisions have implications well beyond college and university admissions. We can expect that actors seeking to maintain white supremacy throughout American society will invoke the majority’s reasoning in a whole host of other policy areas. For example, litigants will likely rely on the decisions in attempts to make it harder for employers to promote and enforce hiring practices aimed at creating a more diverse and equitable workforce. More broadly, the majority’s reasoning will likely be used to strike down government attempts to address centuries of state-backed discrimination and racial inequities that persist to this day. From environmental justice efforts, to voting rights protection and expansion, to criminal justice reform, to fights for fair and affordable housing, to reparations for descendants of US slavery, we can expect that conservative litigants will use the majority’s reasoning to hamper progressive efforts toward racial justice in virtually all policy areas.
In the absence of meaningful court reform, university administrators, racial justice activists, and legal advocates are now forced to develop new strategies to repair and redress past racialized harms and racial distinctions made in order to maintain white supremacy. As the court continues its assault on racial progress, demanding political action from our leaders is all the more critical.