The End of Affirmative Action is not the End of the Road.

Since the supreme court decision in Students for Fair Admission Inc. v. Harvard, much of the response has been over the top hysteria having no relation to what the court actually said. Many schools, businesses, and organizations are running scared and taking dramatic steps to avoid violating what they perceive or were told the decision was.  Most of it is wrong.

The first thing to realize is that the question in the case was whether the admissions systems used by Harvard College and UNC are lawful under the Equal Protection Clause of the Fourteenth Amendment. Admissions system – college.  Keep those two nouns in your head.

In 2020, 48% of students in the U.S. were non-white. In 2022, 39% of law student applicants were people of color – the most diverse class ever.  This is what scares them. With the shift in student body, curricula must shift too. Thus the “don’t say gay” and “stop woke” laws and prohibitions on teaching accurate history.

At Harvard, race (a category that doesn’t even exist in scientific reality) was specifically taken into account.  The goal was to ensure no dramatic drop off occurred in minority admissions.  Race was a “tip” for African American and Hispanic applicants. The UNC process was similar.  Those systems were found to violate the Equal Protection Clause of the Fourteenth Amendment. 

Questions were raised about the legitimacy of the plaintiff, “Students for Fair Admission,” as to whether it was a “real” organization or most likely just ginned up for this case. The supreme court that really wanted to eliminate affirmative action said it was real.  Chief Justice John Roberts said in a 2007 case (Parents Involved in Community Schools v. Seattle) that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” This case gave him the path.

Turning the meaning of the Fourteenth Amendment on its head, the court said that it is odious to free people to make distinctions between citizens because of their ancestry – although the U.S. has done that very thing since 1619. No distinctions would be well and good if we lived in a color-blind society, but we don’t. Whites have had and continue to have privilege in the education admission process which this decision denies. The court points out that “race” could be used as a negative as it has been for four centuries but the court now says “race” can’t be used as a positive to ameliorate the harm done over those four centuries.

Diversity still is a compelling state interest. So all of you Diversity, Equity, and Inclusion (DEI) people do not run screaming into the night. The only court said you cannot assume that the “race” of the individual indicates any specific viewpoint or interest. The court admitted that despite Justice Sandra Day O’Connor’s hope that we would not need racial preferences in 25 years, our society is no closer to equality now than we were then – we may be further away. But the court put boundaries around any race-based college admissions program:  1) it must comply with strict scrutiny and its progress be measurable; 2) race cannot be used as a stereotype or negative; and 3) it must end at some point.  It should end when racism ends if anyone wants to hazard a guess when that might be.  

How to measure the programs was also problematic for the court. The court claims that training future leaders, expanding knowledge by diverse outlooks, a robust marketplace of ideas, and preparing engaged and productive citizens are not measurable goals so how would you know when to end them? Magically the courts can figure out if temporary racial segregation of inmates prevents harm to some, but they cannot figure out whether an increase in African American scientists or Hispanic lawyers is a good thing or how to measure it.

The court also complains about over broad classifications i.e. Asian v. East Asian, undefined (Hispanic), or underinclusive i.e. no Middle Eastern and North African (MENA) category. The court claims that under the existing program, Asians were under admitted and that since admission is a zero-sum game, one person in means one person out. Such is not the case for DEI programs.

This supreme court was also very concerned about stereotyping (if you can believe that) and said that assuming one African American stood for all African Americans was contrary to the 
Fourteenth Amendment. That’s quite funny coming from this court that has packaged African Americans into one bundle for centuries (Plessy v. Ferguson, Dred Scott, Korematsu etc.). On the other hand, the court complains that the end point may be when the admissions percentage matches the percentage of the group in the society. But that is discriminatory as there can be no “racial balancing.”  Damned if you do; damned if you don’t.

But, says the court, the student can discuss how “race” has impacted her life so long as it is tied to some character trait or unique ability that the person can contribute to the university. The court claims that colleges look at the color of the skin rather than challenges overcome, skills built, or lessons learned. In my experience challenges, skills, and lessons is precisely what the college looks at and the supreme court is the institution out of touch.

We knew this was just another step to turn back the clock to white supremacy. America First Legal quickly sent a letter to 200 U.S. law schools after the ruling in SFFA threatening legal action if the institutions extended any “discriminatory preferences” based on race, sex, or national origin. The decision did not address sex or national origin. A group of thirteen state attorneys general from the red states also sent a letter to all Fortune 100 CEOs threatening accountability for any “race-based quotas or preferences” that companies have adopted for employment and contracting purposes, also citing SFFA. However SFFA is focused on universities that are state actors which Fortune 100 companies are not. (Executing Racial JusticeIan M. Kysel & G. Alex Sinha, 71 UCLA L. Rev. DisC. 2 (2023)) 

Since the decision, much ink has been spilled (or keypads banged). Some complained before and since that affirmative action did not benefit people of color anyhow. After all, CA has not had affirmative action for 30 years nor does Arizona since 2010. Others have complained that now one can look at religion, sexual orientation or economic status but not race that has the biggest impact on people in this society. Of course an applicant can talk about race in her essay but that means she can’t talk about something else. Some argue that the cost of college has long acted as an exclusion factor for people of color.  Others argue that we must look at the structure of our education system that was designed for privileged white men. We must also look to our seats of power (Congress and Wall Street) to see that most of those seats are filled by graduates of Ivy League colleges. When affirmative action came to college it was an “add on” to the existing structure rather than a disruption or reform of that structure. Some have also pointed out that “freedom of speech” and “academic freedom” has been used to sabotage affirmative action and DEI efforts by amplifying the message of exclusion and rejecting the message of inclusion. Neutrality is not neutral when one side has all the power.

Schools have pointed out that the students admitted are not unqualified but are people who would have been overlooked. Legacy admissions that mostly benefit whites are still in place (though a lawsuit is in progress).  The courts carve out of military academies makes it clear that people of color are good enough to die for the country just not good enough to attend the most elite educational institutions.

Since the decision, the Biden administration has released several papers.  “President Biden Announces Actions to Promote Educational Opportunity and Diversity in Colleges and Universities” (June 29, 2023), available at biden-announces-actions-to-promote-educational-opportunity-and-diversity-in-colleges-and- universities/ The President and Vice President called on colleges, universities, and other stakeholders to seize the opportunity to expand access to educational opportunity for all students and to build diverse student bodies, including by recognizing and valuing students who have overcome adversity. In his Fact Sheet, the president encourages colleges to look at financial means, where students grew up and went to high school, and personal experience of hardship or discrimination. Fixing the broken student loan program was another priority. 

The administration points out that colleges and other institutions and business can still use DEI – just don’t base it on race. Neither class nor income levels are protected categories in the U.S. so you can use those as widely as you like. The Biden guidance talks about continuing the “pathway” programs for recruitment, targeting schools that are Hispanic serving institutions or HBCUs,  magnet schools, or geography e.g. where no one has ever applied before. Institutions can also look at low performing schools or those with a high dropout rate or Title I schools. They can ask the applicants if they are first generation college students in their families, Pell grant recipients, or speak more than one language. Some argue that such methods would result in recruiting and retaining more students of color than the present system.  

Institutions can still have missions and goals tied to diversity and use all legal methods to achieve diversity e.g. remove barriers; expand opportunities; collect demographic data and use it to guide policies; evaluate barriers such as application fees, standardized testing, pre-requisite courses or early decision timelines. On campus, students should have clubs, activities, and affinity groups to assist in retention. Discussion of race issues is allowed so long as all can attend. If you have further questions, contact the Department of Education’s Office for Civil Rights (800-421-3481 or or the Department of Justice’s Educational Opportunities Section (877-292-3804 or

The guidance from the U.S. Dept. of Justice, Civil Rights Division and U.S. Department of Education Office for Civil Rights is dated August 14, 2023. This guidance focuses on retaining students once they are in college. Retention is often a big problem if the student does not feel welcome. They suggest partnering with school districts in underserved areas, supporting access to AP courses, and recruiting from community colleges. They also suggest that legacy or donor admissions should be eliminated. Members of the public may report possible civil rights violations to the Department of Justice at, or to the Department of Education’s Office for Civil Rights at

On the same date, the two government entities released a Q&A on what the decision means. They pointed out that universities can consider holistic application review processes that include how the applicant’s personal experiences contribute to campus in a unique way. Schools can consider any quality or characteristic relating to courage, motivation, or determination even if it’s tied to race. Thus it is not based on a stereotype but the experiences of a real person.  

Despite this ruling, the United States remains bound to adopt “special and concrete measures” to level the playing field for racial minorities – not just as a moral matter, but also as a legal requirement under the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). As a matter of human rights law, the United States assumed the obligation to implement such measures in 1994, when it ratified the ICERD. The ICERD requires parties to promote formal and substantive equality across racial and ethnic lines, including through the adoption of temporary measures designed to boost access to resources and opportunities for historically disadvantaged groups. 

President Biden issued EO 13985 on his first day in office to foster enhanced cooperation within the federal government as it seeks to promote racial justice. The executive branch has several actions they could take based on ICERD:  1) acknowledge ICERD and its requirements; 2) incorporate those requirements into rulemaking and enforcement of existing civil rights laws; 3) revise existing executive orders to include ICERD. (Executing Racial Justice)

In August 2022 the U.S. defended its performance on implementing ICERD as it is required to do every other year. The committee issued mixed conclusions about the U.S. performance and made dozens of proposed changes. Unfortunately but commonly, the United States has limited the application of the disputes clause in Article 22 of the ICERD by reservation, such that an individual case would require the “specific consent” of the U.S. before it might be submitted to the ICJ’s jurisdiction. That is unlikely to happen. So the only way to press on the ICERD is to submit “shadow reports” to the committee to ensure they know what is really happening on the ground and to pressure the administration and Congress to follow the recommendations of the ICERD committee.

When planning your response to those attacking DEI, “The Art of War” written by Sunzi between 475 and 221 B.C.E. is the best strategy manual with Saul Alinsky’s “Rules for Radicals” second. Don’t stand in a picket and shoot back. This is a guerilla war. There is no front line. Go a different direction. Try a different strategy. Confuse them. Wait or rush depending on the situation. Use their own rules against them e.g. use the Arizona universal voucher scheme to start our own progressive schools. Because of the disappearance of women studies on campuses, women from Canada have started “Women studies online.” Make strategic allies – businesses need DEI or they won’t recruit the best employees in this competitive market.

Reframe the issue.  DEI is good pedagogy not political; knowledge is always constructed in context including in hard or soft sciences and subjects; tradition is not always right; innovation and discovery should be about society’s problems of poverty, violence, racism, sexism etc.; justice and education for all. Use their rules for us. A group of college professors and the union sued Idaho over a state law that says they can’t teach pro-abortion viewpoints because that is a violation of free speech and academic freedom.  Organize don’t agonize. Be creative and have fun taking down the patriarchy.

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What do you think?