The Magic Kingdom

How the Supreme Court got it wrong in its landmark affirmative action ruling

July 19, 2023

By M. Lee Pelton, President and CEO, The Boston Foundation

The United States Supreme Court’s majority last month tied itself in knots in order to construct a ruling that race-conscious admission programs at two elite universities – the public University of North Carolina at Chapel Hill and the private Harvard University –were unconstitutional and, therefore, unlawful.

It was a tortured exercise in magical thinking, untethered from the reality of America as it is and will continue to be – a pluralistic and multidimensional country that grows more diverse each year. And it was based, in large part, on a counterfactual presumption that we live in a colorblind society, despite a plethora of evidence to the contrary.

On this basis alone, the ruling was a grave and hugely consequential judicial failure. And with this decision, this Court has now resolved itself of all its ambiguities and made it crystal clear that it is a political court, masquerading as a judicial one.

One clear indicator of that was the Court’s decision to continue to allow admissions that favor students with legacy or donor connections, or with athletic prowess – as if being the descendant of an alum or of parents who have the promise of making sizeable philanthropic gifts. or having the ability to shoot a sweet “J” beyond the three-point line are more relevant and dispositive in making admissions decisions than the distinct experiences inherent in one’s race.

It is a shrewd, but shameless, fairy tale to imagine that among the many admission attributes used to stitch together an admitted class, only one attribute – race – is disallowed.

Listen, if you will, to Chief Justice John Roberts in the decision that he wrote for the majority:

M. Lee Pelton
Boston Foundation President and CEO Lee Pelton formerly served as President of Emerson College (2001-2011) and Willamette College (1998-2011).

“According to (the plaintiff) Students For Fair Admissions’ expert, over 80% of all black applicants in the top academic decile were admitted to UNC, while under 70% of white and Asian applicants in that decile were admitted. In the second decile, the disparity is even starker: 83% of black applicants were admitted, while 58% of white applicants and 47% of Asian applicants were admitted. And in the third highest decile, 77% of black applicants were admitted, compared to 48% of white applicants and 34% of Asian applicants.”

As Justice Ketanji Brown Jackson responded persuasively, his is a conclusion unsupported by the facts: “Even while the majority’s ad hoc statistical analysis is taken at face value, it hardly supports what the majority wishes to intimate: that Black students are being admitted based on UNC’s myopic focus on ‘race – and race alone.’”

In making its decision, the Roberts Court overturned more than four decades of settled law beginning with the 1978 Regents of University of California v. Bakke decision and later confirmed in the 2003 University of Michigan Grutter v. Bollinger decision.  In writing for the majority in Grutter, Justice Sandra Day O’Connor endorsed Justice Lewis Powell’s view from Bakke that “student body diversity is a compelling state interest in the context of university admissions.” Thus, the Grutter ruling held that colleges and universities could continue to use affirmative action to achieve diversity, provided the methods of doing so were “narrowly tailored.” Additionally, in very helpful prose, Justice O’Connor made clear that “narrow tailoring does not require exhaustion of every conceivable race-neutral alternative.”

In other words, race, and, by extension one’s racial experiences, may be used as one of several factors to assess an admission’s candidate’s application, provided it is not the sole or defining factor.

The Justices in the 2003 Grutter case also based their ruling on research demonstrating that diversity is essential to learning and intellectual development. The Court did not rule -- or even consider -- that its decision was to correct centuries-old wrongs or harms, as the perpetually aggrieved Justice Clarence Thomas has wrongly insisted for many decades but rather that diversity in a university setting is essential to good educational outcomes. It found that a diverse learning environment contributes positively to the educational experiences of the entire student population, which, in turn, benefits the nation.

Yet, the debate about the educational benefits of diversity, in its preoccupation with the trees, misses the very important forest—namely, that ensuring diversity constitutes a moral imperative that goes far beyond the benefits to students on campus. Affirmative action’s compelling social function is, as Justice O’Connor reminded us in Grutter, that it contributes positively to educating and training future generations of America’s ethnic and racial leaders. We are looking to make sure we can have future Colin Powell’s,” said a signer of one of the military amicus curiae briefs filed on behalf of the University of Michigan. Analyzed from another perspective, it is impossible to imagine what America would be like today if those who benefited from affirmative action completely disappeared from the leadership positions they now occupy in government, business, the arts, education and the Supreme Court itself.

Justice Roberts seems to at least acknowledge these benefits in his curious and jaw-dropping statement that the ruling should be seen as exempting the United States military academies from the Court’s decision because the military must maintain affirmative action “in light of the potentially distinct interests that military academies may present” in order to ensure that its leadership reflect the diversity of its troops.

This carve-out for military academies exposes the appalling hypocrisy and cynicism embedded in the Court’s decision because, surely, if America needs to continue to change—so that its workforce and policies both reflect and support the growing diversity of this nation—then the color and gender of all of its leadership also will need to continue to change -- not only in the military, but in all sectors, including commerce, business, civil society, academic institutions and every other walk of professional life that contributes to the public good. 

But, of course, this outcome is precisely the terrifying threat that affirmative action represents to its opponents, but one that they dare not express.

As Justice Brown Jackson writes:

“The Court has come to rest on the bottom-line conclusion that racial diversity in higher education is only worth potentially preserving insofar as it might be needed to prepare Black Americans and the other underrepresented minorities for success in the bunker, not the boardroom (a particularly awkward place to land, in light of the history the majority opts to ignore.) It would be deeply unfortunate if the Equal Protection Clause actually demanded this perverse, ahistorical and counterproductive outcome. To impose this result in that Clause’s name when it requires no such thing, and to thereby obstruct our collective progress toward the full realization of the Clause’s promise, is truly a tragedy for us all.”

As a reminder, the purpose of the 14th Amendment to the Constitution, which was adopted after the Civil War on July 9, 1868, as one of the so-called Reconstruction Amendments, had several Clauses.  However, the most urgent and consequential Clause was to restore full citizenship to formerly enslaved Americans. It sought to transform the United States from a country that was, as President Abraham Lincoln described, "half slave and half free," to one in which the constitutionally guaranteed "blessings of liberty" and “equal protection of the laws” would be given to former slaves and their descendants and perforce to other citizens as well. 

With this history and purpose of the 14th Amendment in mind, it is that Jackson wrote that the Court’s reliance on the equal protection clause to abolish race-conscious admission regimes is both “perverse” and “ahistorical.” The majority, she adds, “blinks at both history and reality in ways too numerous to count.”

The plaintiffs base their opposition to how Harvard and UNC use affirmative action in their admissions decisions on zero-sum thinking, which posits that if one wins, the other loses. But the undeniable and demonstrable truth is that creating a learning environment of excellence by means of diversity is not a zero-sum game. It is actually a game changer.

The benefits of creating excellence in a university setting and paving the way for the opportunity of diverse leadership in American life are why there was such deep, urgent and broad support from every corner of America for the University of Michigan’s use of race as a single factor among all other factors considered in its admissions process. Corporate America and the military, which used their considerable weight and influence, were among the university’s strongest supporters because they understood that creating an environment of educational diversity is not a zero-sum game, but rather a tide that lifts all boats.

The best education prepares students to be fit company not merely for themselves, but for others as well. Our nation is still in want of students awakened to the powerful lessons of human history; of enlightened managers trained to shape and give order to human experience; of teachers ready and equipped to educate our nation’s youth and of legal minds prepared to secure a free and just society.

The different points of view that emerge from diverse cultural heritages and ethnic backgrounds enlarge our aesthetic horizons, enrich our intellectual discourse, sharpen our historical perspective and give increased focus to who we are and what we stand for as a nation. In the Michigan Grutter case, the Court both acknowledged that these important ends are best met within a context of learning that is multi-dimensionally diverse and also affirmed that selective private and public universities have an obligation to ensure that “the path to leadership [is] open to talented and qualified individuals of every race and ethnicity.”

It has been widely reported that the percentage of Black undergraduates has dropped at public universities in states that previously banned race-conscious admission policies. At the University of Michigan, the Black undergraduate enrollment decreased from 7% in 2006 to 4% in 2021. After California’s passage of Proposition 209 in 1996, which prohibited the University of California and other state entities from using race, ethnicity or sex as criteria in public employment, public contracting and public education, the University system saw a similarly significant drop in Black undergraduate enrollment. Black enrollment at University of California, Los Angeles, for instance, declined by 50% in the following two years. In the amicus brief filed by three highly regarded liberal arts colleges – Amherst, Wesleyan, and Williams – they predicted that the percentage of admitted Black students at their institutions would fall by roughly 5%.

Clearly, the Court’s ruling will further deteriorate the matriculation of many of our Black and Latino students to our colleges and universities and thus, in turn, reduce the pipeline of these students for leadership positions in America.

In 1984, I was asked to join the Harvard Faculty Standing Committee on College Admissions. In my two years on the Committee, I was asked to read and comment on the applications of prospective students who had indicated an interest in the humanities. I was impressed then by Harvard’s comprehensive and highly individualized process as I continue to be impressed now, especially in the face of the Court’s misunderstanding of it.

Harvard’s amicus curiae brief on behalf of the respondents in the 2003 University of Michigan’s case summarized the process well:

“At Harvard College every application is read individually by at least one admissions officer and often two or more. All applicants are further considered, and any who are serious contenders for admission are discussed by a multi-member admissions subcommittee. Candidates are reviewed and discussed yet again by the entire admissions committee, consisting of approximately 30 members, often supplemented by faculty members in relevant departments. All this review and discussion is necessary precisely because the admissions process seeks to form a class that is diverse along multiple dimensions, of which race is but one—a class that is more than the sum of its individual student parts.”

At Harvard, this is not, nor has it ever been, a simple “check the box” process, but rather one that includes scrupulous attention to the “whole student,” as opposed to a single aspect of the student and certainly not exclusively to race.

Justice Roberts writes that both UNC and Harvard “involve racial stereotyping” in their admission programs and that both universities admit Black and Latino applicants over white and Asian applicants in the name of diversity. But in doing so, the Court casts a very wide and hurtful net that stereotypes Asian-American applicants as monolithically homogenous, as opposed to the enormously diverse ethnic group that they are.

Indeed, UNC, Harvard and other enlightened higher education institutions race-conscious admissions policies extend not only to Black and Latino Americans, but also to Asian-American communities, which have been growing ever more nuanced and complex in the variety of ethnicities they comprise. Overall, Asian Americans—including those of Indian, Chinese, Filipino, Japanese and Korean heritage—account for higher than average percentages of both high school and college graduates, but members of more recent Asian immigrant groups—Cambodians, Thai and Laotians, for instance—have profiles more closely resembling those of African Americans and Latinos.  

It is appalling that the Court, following the misguided lead of the plaintiff Student For Fair Admissions (SFFA), would stoop so low as to reduce the issue before the Court as a Black and Latino versus an Asian and White one. 

Moreover, the insidious zero-game thinking embedded in SFFA’s complaint and the Court’s decision that admissions affirmative action policies have led to Black applicants taking the seats that would have otherwise been filled by White and Asians is preposterous and not supported by the enrollment percentages:

  • At Harvard, the self-identified enrolled undergraduate student population is 46% White, 21.9.% is Asian, 14.3% is multiracial, 10.7% is Black or African American, and 6.5% is Hispanic or Latino. (2022)
  • At UNC, the enrolled undergraduate student population is 65% White, 22% is Asian or Asian American, 10% is Hispanic or Latino, 10% is Black and African American, and 1% is American Indian or Alaskan Native.

In both instances, Black students represent a significantly smaller percentage of enrolled undergraduate students than White and Asian students. Put another way, if Asian students are losing enrollment spots to other students, it is to White students – not Black students, unless one accepts the Court’s underlying racial stereotyping that most or all Asian applicants are significantly more academically talented than most or all Black students admitted and therefore, should be represented in even greater percentages than they already are.

Admission programs acting affirmatively are often described by its opponents as admitting under-achieving applicants that would not otherwise be admitted. However, it would be wrong to believe that the admission practices and policies at UNC or Harvard University are to admit otherwise unqualified Black and Latino students in place of more qualified White and Asian-American students. Admitted students enter these institutions within a broad range of similar abilities and aptitudes in their diverse fields of inquiry and interests. However, these institutions are seeking to close persistent racial and socio-economic opportunities gaps for individual students – Black, Latino, White and Asian Americans alike– as part of their mission to strengthen, not weaken, our democracy.

President Lyndon Baines Johnson, in his remarkable June 1965 Howard University Commencement Address, To Fulfill These Rights, delivered a month before the 1964 passage of the Civil Rights Bills, said:

“You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘You are free to compete with all the others,’ and still justly believe that you have been completely fair… We seek not just freedom but opportunity… it is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates.”

In Justice Thomas’ opinion, he summons up the craw lodged in his throat for decades when he criticizes Justice Brown Jackson because “as she sees things, we are all inexorably trapped in a fundamentally racist society, with the original sin of slavery and the historical subjugation of black Americans still determining our lives today…”

But there is nothing in Grutter or in Justice Brown’s opinion that suggests that UNC or Harvard, through their admissions practices, seeks to repair the harms of slavery, as evil as they were, inflicted on Black Americans.

However, there are serious structural disparities and daily stresses – economic, social, physical and mental – that underserved and communities of color endure each and every day that puts life, liberty and the pursuit of happiness further out of their reach.

For instance, according the 2023 Health of Boston Report, residents of the Back Bay neighborhood of Boston -- an overwhelmingly wealthy neighborhood -- have a life expectancy of 92 years, while the average lifespan in Roxbury, a predominately Black, Afro-Latinx and Latinx neighborhood just two miles away, is 69 years.

For years, federal, state and municipal discriminatory housing and zoning practices, including redlining graded neighborhoods on potential mortgage lending risks that, in turn, led to predatory lending practices as well as covenants that barred specific races other than the Caucasian race from owning, occupying, renting, selling or inheriting buildings in specific were tied explicitly to race and discriminatory on their face.

In 1944, the GI Bill lifted a generation into the middle class. It was then the greatest expansion of the middle class in American history. It gave free college and cheap home loans to millions of veterans. However, the United States was still very much segregated when the GI Bill became law, meaning that it excluded Black vets who served their country at war and came home to segregation.

These and many more such instances left behind wreckage from which many neighborhoods and families – even more than half a century later – have not yet fully recovered. And none of them are rooted in Justice Thomas “slavery’s original sin.”

These are contemporaneous inequities that have contemporaneous social and economic consequences that impact families and individuals now and into the future. Because they are structural and have persisted over so many years, they impose barriers to the opportunities that other American’s enjoy in full measure – opportunities that make it nearly impossible for them to overcome without aid and assistance.

Moreover – and this is most important – none of the unjust racial disparities that we see today happened by accident; they are built into the very fabric and structure of American life.

Since the recent Supreme Court issued its ruling, many have wondered whether its reliance on the Constitutional equal protection clause of the 14th Amendment and Title VI of the 1964 Civil Rights Act -- which prohibits discrimination on the ground of race, color of national origin under any program receiving federal funding -- will embolden state agencies and other plaintiffs with standing to challenge diversity programs in areas outside of higher education admission policies.  

On the same day, shortly after the Court issue its decision, the Missouri Attorney General’s office announced that all Missouri colleges and universities – both public and private -- must end the practice of making diversity scholarships available to its students.

And there is potential for more challenges going forward:

Will the ruling lead to many more so-called “reverse racism” suits?

Will employers be deterred or even prohibited from participating in DEI (Diversity Equity and Inclusion) programs that provide race-conscious preferences in recruitment, hiring, retention or promotion?

Will corporate boards withdraw support for their ESG (Environment, Sustainability, Governance) objectives because they include efforts to increase diversity in corporate practices?

Will charitable foundations that receive federal funding be prohibited from making contracts or grants that advance DEI initiatives.

Will in-house corporate or nonprofit affinity groups disappear?

While it is difficult to know the full extent of the fallout of the Court’s decision as it impacts corporations and nonprofits, it seems likely that it will indeed have a chilling effect, not only on other university diversity programs but in other areas as well. It would seem prudent for corporations and any organization receiving federal support to begin now – rather than later – to investigate preventative defense legal strategies.

Oddly, there is perhaps a glimmer of hope in Roberts’ own head-scratching prose, where he asserts that “nothing in this opinion 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. But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today.”

What does this mean? How is it even possible to untangle one’s race from the experiences that their race has imposed on them?

Race is not a concept merely, but an experience shaped, in large measure, by how you experience yourself, and how others experience you.  Any attempts to detach race from the experience of race is naïve, futile and senseless.

 However, there appears to be good news and many opportunities for those who support diversity, inclusion and belonging in university admissions, the workplace and other programs. Lawyers for Civil Rights, a Boston nonprofit that fights discrimination and fosters equity, along with others across the country, have been quick to find ways that academic institutions can continue to build the kind of well-rounded classes that our society needs and requires. As they point out:

The decision cannot be construed as an outright ban on race-conscious admissions. Key elements of the holistic assessment process for higher education institutions remain in place. The ruling also leaves open the door for colleges to use race-neutral alternatives to achieve diversity on campus, including:

  • Recruiting based on income and socioeconomic background;
  • Using criteria such as home and school zip codes;
  • Investing heavily in efforts to admit first-generation college students and to make them feel at home on campus; and
  • Guaranteeing admission to graduates with the best grade-point averages from each high school within the state where the college or university is located, as schools such as the University of Texas have already successfully implemented.

It is my sincere hope that these key elements will indeed survive strict scrutiny now and in the future.

There is also hope in the swift, bold and courageous outpouring of support from a multitude of organizations – both corporate and nonprofit – that, despite the Court’s decision, have forcefully expressed their ongoing commitment to diversity, inclusion and belonging practices and policies.

At the Boston Foundation, we point out that the Court’s decision striking down affirmative action in college admissions flies in the face of decades of history and ignores historical evidence that affirmative action has lessened the systemic inequity of opportunity in higher education. Moreover, it threatens future opportunities for leaders of color.

We promise to redouble our commitment as a foundation to our principal goal of advancing equity for all. We remain committed to closing the gaps in our region’s greatest disparities. But to do so we must be honest about their very existence and the historical legacies that led to their creation. As Greater Boston’s community foundation, we will continue to reflect and support the rich diversity of our city and region, promote policies and practices that tackle the individual, systemic and root-level causes of inequity, and be a bold voice to unapologetically face challenging issues.

This is our promise. We will not be denied.