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…
Read More: Supreme Court Will End the Era of College Diversity
