If affirmative action had been a boxer, it would have been on the ropes for most of its career but was regularly saved by split decisions. However, in what appears to be its final fight, it lost. On June 29, 2023, the Supreme Court, in a 6 to 3 decision (Students For Fair Admissions, Inc. vs. President and Fellows of Harvard College) ruled that affirmative action programs at the University of North Carolina and Harvard discriminated against Asian students and were illegal and unconstitutional.

From the beginning in the 1970’s, the Supreme Court had ruled against certain types of affirmative action but maintained that carefully tailored programs would be allowed. An individual challenging affirmative action at a particular institution (see Alan Bakke below) might be admitted. The challenged affirmative action program was declared illegal but, at the same time, the Court indicated that appropriately designed affirmative action programs were desirable and, hence, affirmative action was effectively salvaged.

Since affirmative action is based on “race,” one wonders how it survived this long. In the last 75 years any racial category which disadvantaged black Americans would be struck down immediately as a violation of the 14th Amendment’s equal protection clause which was enacted after the Civil War. But “affirmative action” was a racial category which theoretically advantaged black Americans so what could be wrong with that? Pretty much everything because racial categories are inherently unfair to those who are excluded.

Suppose, for example, in the interest of diversity, a university determined that no less and no more than 15% of its students should be black Americans. In turn, other groups were awarded a percentage cap (first time college student 15%; Hispanics 10%; Asians, 20%; legacy students 20%, LGBTQ student 5%, all others, 15%). A prospective black American student sues, saying that he or she has been excluded simply because of the 15% rule. Is there any doubt that such a policy is and should be unconstitutional?

Alan Bakke was twice turned down for medical school at the University of California, Davis. He alleged that the quota of 16 black students for 100 spots violated the law. In 1978, the Supreme Court agreed (Regents of the University of California vs. Bakke) and ruled that Bakke should be admitted but also held diversity was a desirable outcome and, while quotas were illegal, any attempt to achieve diversity, was laudable although it would be judged by a “strict scrutiny.”

In 2003, the University of Michigan was involved in two cases that reached the Supreme Court over the issue of affirmative action and were decided the same day. In one case (Grutter vs. Bollinger), a white woman complained that she had been excluded from the law school because of unfair consideration given to certain minority groups. Her claim was unsuccessful, and Justice Sandra Day O’Connor wrote, in a 5-4 decision, that the Constitution “does not prohibit the law school’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.” The Michigan law school admission policy passed the “strict scrutiny” test announced in Bakke.

However, in the second case (Gratz vs. Bollinger), Supreme Court (6-3) struck down a point-based admission system that awarded an automatic bonus of 20 points to the admission scores of minority applicants to the undergraduate school without any consideration of their individual merit. Automatic credit without individual consideration was not permissible.

While the Grutter vs. Bollinger decision affirmed the rationale in the Bakke case, the majority opinion by Justice O’Connor contained the following sentence: “Race-conscious admissions policy must be limited in time,” adding that the “Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

The “25 years from now” phrase became, for the dissenters, a swinging piñata begging to be smacked and smacked it was. Justice Clarence Thomas agreed with the majority opinion on this single point: the policy in question would be unconstitutional 25 years from 2003 and, if it would be unconstitutional in 2028, he wondered how it could not be unconstitutional in 2003.

Attention has now turned to the issue of “legacy admissions” which have been described as “affirmative action for wealthy white people.” Legacy admissions are surely a benefit to prospective students whose parents or grandparents attended the institution. They may well be white although there probably is no shortage of black students whose grandparents or parents were the beneficiaries of affirmative action programs. Indeed, the most recent data concerning Harvard legacy students indicates that only seven out of 10 are white (New York Times, July 27, 2023).

In a broader sense, legacy students contribute to diversity. They may come from wealthier backgrounds, prep schools and the like but they will mix with other students who do not have the same background. Such exposure can be meaningful. A non-legacy student may look at the legacy students and decide that he or she wants to have values like them or decide to never be like them. The point is that a legacy student provides a model, good or bad, to be evaluated by the other students.

Then, of course, there is the money. One of the standard arguments for legacy students is that policy encourages granddad/mom or dad/mom to continue to make contributions to the college. At one school, $30 million got the giver a named quad and an expelled son readmitted: a classic case of someone with too much money and school administrators who knew it. The money, which is often quite substantial, can be used for many things including scholarship support for those who could not otherwise afford the tuition.

So, was affirmative action good or bad? It may have been good for those who benefited from it, but it was bad for those who were excluded because of it. It contributed to the notion that every black person who was accepted at a school or got a particular job was being rewarded because of their race and not because of their merit. There is little doubt the black people must have felt the condescending stares of fellow students or coworkers. It resulted in the creation of the phrase “reverse discrimination.”

Moreover, it was completely unnecessary. Colleges could have created a program that gave preference to first-time college students and to students from the lower socioeconomic groups. That would have effectively helped black students and white students as well. And, as a result of the Supreme Court decision, Harvard and other colleges can use these policies to select their student bodies.

The Supreme Court decision generated the usual political blather. The White House and the Democratic Party bemoaned the decision blaming it on the conservatives on the Court while the other side applauded the return to sanity. Senate Majority Leader Chuck Schumer, no stranger to hyperbole, said “the Supreme Court has put a giant roadblock in our country’s march toward racial justice.”

What is more interesting than politicians canned or tweeted reactions is the public’s reaction. A substantial majority of the public agreed with the decision, unlike last year’s abortion decision reversing Roe v. Wade which was wildly unpopular. Aaron Blake. writing in the Washington Post on July 6, 2023. indicated that one poll showed Americans approving it by more than 2 to 1 margin. The same poll indicated that more black Americans approved the decision than disapproved of it. Indeed, 31% of black Americans “strongly” approved of the decision. Just 20% of black Americans felt that affirmative action had put them at an advantage and, strikingly, 35% actually said they felt that it had put them at a disadvantage.

My take is that the decision was correct and that it will really not make much of a difference going forward. Indeed, it really was about time for affirmative action to be concluded. 

In this, I am reminded of the story of the farmer, his wife and his beautiful teenage daughter, who lived next to a military base. His wife spent every waking minute, trying to protect her daughter’s virginity. The farmer returned from the field, one day and found his wife crying inconsolably on the front porch. He asked why she was so upset. The reply: our daughter is pregnant.

The farmer consoled his wife as best he could, thinking all the time: “Thank God that’s over.”