June 29, 2023 - 5:15pm

The Supreme Court has delivered its long-awaited decision on affirmative action, in the case of Students For Fair Admissions v. Harvard. By a 6-3 majority, the court concluded that Harvard illegally discriminated against Asian Americans. 

The ruling challenges the heart of social justice ideology. “Eliminating racial discrimination means eliminating all of it,” the majority decision reads. Harvard and other American universities have long practiced affirmative action policies which result in different standards for different races. According to a brief quoted in the decision, “[a]n African American [student] in [the fourth lowest academic] decile has a higher chance of admission (12.8%) than an Asian American in the top decile (12.7%).”

The majority declared that “both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.” It is a ruling against the existing procedure of affirmative action, but not the ultimate goal or ideology. 

The decision does not completely ban the use of race as a factor, however. “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.” While the court asserts that Harvard “may not simply establish through application essays or other means the regime we hold unlawful today”, it far from prevents Harvard from using new methods of racial balancing.

Indeed, Harvard’s alternatives may harm higher education even more than its existing programmes. As social scientist Richard Hanania writes:

The experience of California, where affirmative action was banned by referendum, is also instructive. In recent years, UCSD has started rejecting more students from largely Asian high schools and accepting more from those that are largely Hispanic. Under a narrow ruling in SFFA, this would be legal, as long as the university could argue that it was only using some criterion that was a proxy for race, rather than using race to judge the applications of specific individuals.
- Richard Hanania

Justice Clarence Thomas identifies similar issues in his concurrence: 

Both experience and logic have vindicated the Constitution’s color-blind rule and confirmed that the universities’ new narrative cannot stand. Despite the Court’s hope in Grutter that universities would voluntarily end their race-conscious programs and further the goal of racial equality, the opposite appears increasingly true. Harvard and UNC now forthrightly state that they racially discriminate when it comes to admitting students, arguing that such discrimination is consistent with this Court’s precedents. And they, along with today’s dissenters, defend that discrimination as good.
- Clarence Thomas

These concerns highlight the dangers of a highly ideological class of diversity bureaucrats, which will continue to seek new ways to evade laws as long as they are employed. 

Brian Chau is a mathematician, software engineer, and independent writer at cactus.substack.com.