At the end of this month, the U.S. Supreme Court is poised to hear arguments in two closely watched cases on affirmative action in higher education. They’re widely expected to overturn the 1978 case that allowed racial diversity to become an organizing principle for college admissions. Like Roe v. Wade, Regents of the University of California v. Bakke is a major precedent from the 1970s that has been reaffirmed in subsequent Supreme Court decisions. But unlike the decision to overturn Roe, which returned the question of abortion to the states, repealing Bakke would make using race in university admissions illegal nationwide as a violation of the equal protection of the laws.
The ramifications will be enormous not only for universities, but for the broader culture.
Nearly all selective colleges and universities treat race as one factor in “holistic” admissions decisions, enabling them to enroll classes that are roughly racially representative of the general national population (except for Asian-Americans, who today significantly outpace their national numbers in admissions). At Harvard, for example, the admitted class of 2026 was 15.2% African American, 12.6% Latino and 27.9% Asian American. More broadly, the powerful ideology of diversity, which has become deeply rooted across a wide range of institutions of American life, is about to undergo radical challenge and transformation from the courts.
Evidence from the Universities of California and Michigan, which have already been required by state law to drop affirmative action, indicates that repealing Bakke would cause a substantial decline in the proportion of Black and Latino students enrolled in selective universities nationwide — perhaps by half. Universities would no longer be allowed to pursue racial diversity, gender diversity, sexual orientation diversity or religious diversity. (They would still be allowed to pursue economic diversity, class diversity, viewpoint diversity and geographic diversity, because these categories aren’t protected against discrimination by the Constitution or civil rights laws.)
To understand what a monumental shift this will be, let’s back up. When affirmative action was first proposed and implemented in the 1960s, the stated goal was to remedy past discrimination that took the forms of slavery, segregation and race prejudice. In 1978, a divided Supreme Court narrowly held that, in higher education at least, remediation was no longer a permissible rationale for the great majority of schools. A single justice, Lewis Powell, wrote a concurring opinion holding that universities nevertheless had a constitutional, compelling interest in creating “diverse” student bodies.
Powell got the diversity idea from a friend-of-the-court brief submitted by Harvard University, which had begun engineering geographical diversity in its classes in the 1930s. (The original purpose of Harvard’s geographical diversity strategy was likely to reduce the number of Jewish students from Boston and New York being admitted under the pre-existing exam system, but that is a story for another day.) Although no other justice joined Powell’s opinion, it became the controlling one because it was the narrowest opinion that upheld some form of affirmative action.
In the decades that followed, the diversity rationale twice narrowly survived concerted attack. In 2003, Justice Sandra Day O’Connor provided the decisive vote, upholding the use of race as an unquantified admissions factor even as the court rejected its use in a numerical point admissions scheme. In 2016, Justice Anthony Kennedy — by then the center of the court after O’Connor’s retirement — flipped positions to save diversity-based affirmative action when race is used as part of a “holistic” admissions process.
In the crucible of these and other legal challenges, the diversity rationale evolved. Rather than seeking a narrower goal of remediation, diversity gradually came to be adopted as an overarching value for universities, employers, charitable foundations, the arts, entertainment and beyond. What had once been a tool for Harvard’s college admissions officers became the received common sense of institutions dominated by progressives. As Harvard put it in a formal report a few years back: “Achieving excellence … requires bringing a broad diversity of perspectives, methods, and experiences to bear on any given area of study or discovery. In other words, academic excellence requires diversity and inclusion.”
Such beliefs infuse nearly everything done in elite U.S. universities today, from admissions to faculty hiring to the composition of committees to curriculum itself.
Conservatives, however, never fully embraced diversity. Even as some conservatives began to lobby for “viewpoint diversity” (to benefit themselves) others continued the legal push to dismantle affirmative action.
On the current Supreme Court, with its 6-3 conservative majority, there are more than enough votes to achieve that goal. Chief Justice John Roberts, the conservative who balked at overturning Roe, has rejected affirmative action before, writing in 2007 that “the way to get past racial discrimination is to get past racial discrimination.” Without his vote, two other, harder-line conservatives would have to embrace affirmative action for it to survive by a 5-4 vote. That’s not likely.
The lawsuits currently before the Supreme Court include one against the University of North Carolina and another against Harvard. In the UNC case, the Supreme Court can and likely will hold that the equal protection clause of the Fourteenth Amendment prohibits any use of race in admissions. In so holding, the court would also say that diversity no longer counts as a compelling state interest justifying the use of race. And in the Harvard case, the court is expected to hold that the anti-discrimination statute that covers private universities — called Title XI — also disallows any form of race-based affirmative action or the express pursuit of racial diversity.
It is possible that these opinions could be written so narrowly that it would still be legal for universities to say that they merely hoped to achieve racial diversity. But taking any race-conscious decisions to achieve that goal would be illegal.
Going forward, government entities (like state universities) would, in practice, be constitutionally barred from seeking race or sex diversity in their admissions. The Constitution only governs state action, not private actors. But the meaning of equal protection under the Constitution casts a long shadow over the meaning of anti-discrimination laws that do govern private-sector conduct. The Supreme Court will almost certainly decide in the Harvard case that Title VI, the statute that bans racial discrimination in education, prohibits affirmative action. Thus, after the decision, private universities, like public ones, will not be allowed to consider the goal of achieving racial diversity as a factor in admissions.
Given their sincere, ingrained, widely held beliefs in diversity, universities are unlikely to simply give up on it. Core values do not disappear overnight in any institution. Universities will therefore adopt a range of different methods to resist the Supreme Court’s holding.
Diversity statements could be left on the books, but amended to say the universities still care about diversity and will pursue it consistent with constitutional and federal law, to prevent them from being used as evidence of illegal, discriminatory motivation. That is what happened at the University of Michigan, which was barred at the state level from using affirmative action some 16 years ago. The rhetoric of diversity is as present at Michigan as it is at any other elite university.
At the same time, all selective universities will make efforts to enhance their focus on who is a first-generation college student, who comes from an economically depressed area, and who has overcome the greatest demonstrable barriers to reach the position of applying — again, as Michigan has done. Even using these lawful methods, however, it is all but certain that the universities will struggle to admit as many Black and Latino students as they currently do.
Although admissions officers will still be able to consider economic and class markers, like first-generation college status, those will not suffice to cover the racial gap, because most poor people in the US are White. More precise proxies, like ZIP code, will likely be rejected by the courts as race-based affirmative action by another name.
In the near to medium term, then, we are likely to see a full-on oppositional struggle between at least some elite universities and the federal courts on the question of diversity in admissions. The reality of such struggles is that the courts will win in the end, because the Supreme Court will have been clear. Eventually, then, the universities will have little choice but to change their rhetoric away from an emphasis on diversity. After that, if history is any indication, the ideology of educational diversity will gradually begin to recede — the way it initially arose because of judicial blessing. It is impossible to say exactly what will replace it. But given that the belief in diversity grew from what the Supreme Court allowed diversity to do, the belief will have trouble outlasting its practical usefulness.
The Supreme Court’s 2022 abortion decision triggered a national shockwave. A landmark 2023 affirmative action decision is going to do the same — with far-reaching consequences for higher education, private-sector employers and elite ideology.
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ABOUT THE WRITER
Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “The Broken Constitution: Lincoln, Slavery and the Refounding of America.”
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
