The Supreme Court’s decision today that the race-conscious admissions programs as practiced at the University of North Carolina at Chapel Hill and Harvard—the nation’s oldest public and private universities, respectively—are unconstitutional upends more than four decades of precedent on the use of race in college admissions. The decision could have major implications for the country’s approach to the Fourteenth Amendment’s promise of “equal protection of the laws.” Meanwhile, its consequences for diversity at institutions of higher education are far from clear.

In a 40-page opinion, Chief Justice John Roberts, writing for the majority, argued that the institutions violated the equal-protection clause of the Fourteenth Amendment of the Constitution by failing to use race “within the confines of narrow restrictions outlined by the court.” The programs, Roberts wrote, effectively require stereotyping of underrepresented minorities. “When a university admits students ‘on the basis of race, it engages in the offensive and demeaning assumption that [students] of a particular race, because of their race, think alike,'” Roberts wrote. He also pointed out that the Court has, in the past, suggested that such programs need a sunset date and lack a “logical endpoint.”

But Roberts stopped short of banning institutions from considering race at all in its admissions programs. He included a significant caveat that institutions could consider an applicant’s discussion of “how race affected his or her life, be it through discrimination, inspiration, or otherwise,” on a case-by-case basis. Additionally, in a footnote, he wrote that military academies could continue to operate their race-conscious systems in “light of potentially distinct interests that military academies may present.” (Roughly 18 percent of military officers come from the five service academies.)

[Ronald Brownstein: Curtailing affirmative action is a blow against a rising generation]

Legally, the decision is a landmark, taking a tool—the Fourteenth Amendment—meant to prevent discrimination against Black Americans in a post–Civil War landscape and turning it on its head, into a guarantor of a “race neutral” approach. The amendment has been used in the past to guarantee the rights of marginalized groups in voting and employment; it animated the decision in Brown v. Board of Education. In this case, the Court took Justice John Marshall Harlan’s dissent in Plessy v. Ferguson, that “our Constitution is color-blind, and neither knows nor tolerates classes among citizens,” to upend that historical purpose, a result that Justice Thurgood Marshall had in some ways predicted four decades ago. “It would be the cruelest irony for this Court to adopt the dissent in Plessy now and hold that the University must use color-blind admissions,” Marshall wrote.  

The term affirmative action first came into the federal lexicon in 1961, when President John F. Kennedy issued Executive Order 10925, aimed at banning discrimination in the federal government and diversifying its workforce. In short order, colleges—which had become subject to enhanced federal antidiscrimination laws after the passage of the Civil Rights Act of 1964 and the Higher Education Act of 1965—began to implement affirmative-action programs to build up their enrollment of students from historically marginalized communities. The programs were intended to correct a history of segregation and inequity in America’s higher-education system—a system in which no state in the country funded Black and white students, or the colleges they attended, equally.

[Uma Mazyck Jayakumar and Ibram X. Kendi: ‘Race neutral’ is the new ‘separate but equal’]

But nearly as soon as affirmative action was put in place, a Supreme Court case severely limited its scope. In the 1970s, Allan Bakke, a white applicant to the medical school at UC Davis, contended that he was denied admission because of an admissions program that allotted seats for minority applicants. The university set aside 16 seats each year, out of a 100-person class, for such students. By 1978, when the Court issued its ruling, the justices came to a compromise opinion written by Justice Lewis Powell, who wrote that race could not be used to remedy past discrimination; it could only be used for the approved goal of diversifying the student body for the sake of the educational experience of all students.

In his opinion today, Chief Justice Roberts took a sledgehammer to that diversity rationale, arguing that it gives too much deference to universities. “Unlike discerning whether a prisoner will be injured or whether an employee should receive backpay, the question whether a particular mix of minority students produces ‘engaged and productive citizens,’ sufficiently ‘enhance[s] appreciation, respect, and empathy,’ or effectively ‘train[s] future leaders’ is standardless,” Roberts wrote. “The interests that respondents seek, though plainly worthy, are inescapably imponderable.” Powell’s articulation of the reason for race-conscious admissions became its undoing.
Now institutions are left to decipher what this all means in practice. America has examples of what happens when race-conscious admissions programs go away. Michigan experienced a 10 percent decline in its Black enrollment in the three years after the state banned affirmative action through a 2006 ballot initiative. California saw a similar decline following its 1996 ban—and consequently, as the education-policy researcher Kevin Carey wrote, Black and Hispanic students were “less likely to earn bachelor’s degrees in a science and engineering field, as well as less likely to graduate overall” than they were before the ban.

[Drew Gilpin Faust: The blindness of ‘color-blindness’]

Meanwhile, a 2020 report from the nonprofit Education Trust showed that Black enrollment had already been declining at 60 percent of the nation’s most selective public colleges—that is to say, the types of institutions that reject enough students to have to consider race in admissions. These institutions rarely enroll underrepresented students at rates proportional to their state populations in the first place. This inequality is now poised to get much worse. Private institutions, such as Harvard and Yale, may be able to marshal their resources to allow admissions officers more time to review applications on the first read—at many of the most selective schools, reviewers only have a few minutes to spend with each application. But even that might have a limited life span. After all, deciphering how race has affected a student’s life and employing that in individual admissions decisions will not erase the haziness around selective admissions that invites these legal challenges in the first place.

In her dissent, Justice Ketanji Brown Jackson zeroed in on the irony of this decision being based in the equal-protection clause. “With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat,” Jackson wrote. “But deeming race irrelevant in law does not make it so in life.”

Welcome to Up for Debate. Each week, Conor Friedersdorf rounds up timely conversations and solicits reader responses to one thought-provoking question. Later, he publishes some thoughtful replies. Sign up for the newsletter here.

Question of the Week

What do you think about the Supreme Court decision in this term’s affirmative-action cases?

Send your responses to conor@theatlantic.com

Conversations of Note

The Supreme Court’s decision striking down the use of race in admissions at Harvard University and the University of North Carolina was released today. Here’s an excerpt from Chief Justice John Roberts’s majority opinion:

The entire point of the Equal Protection Clause is that treating someone differently because of their skin color is not like treating them differently because they are from a city or from a suburb, or because they play the violin poorly or well. “One of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities.” But when a university admits students “on the basis of race, it engages in the offensive and demeaning assumption that [students] of a particular race, because of their race, think alike … at the very least alike in the sense of being different from nonminority students. In doing so, the university furthers “stereotypes that treat individuals as the product of their race, evaluating their thoughts and efforts—their very worth as citizens—according to a criterion barred to the Government by history and the Constitution” …

While the dissent would certainly not permit university programs that discriminated against black and Latino applicants, it is perfectly willing to let the programs here continue. In its view, this Court is supposed to tell state actors when they have picked the right races to benefit. Separate but equal is “inherently unequal,” said Brown. It depends, says the dissent.

And here is an excerpt from Justice Sonia Sotomayor’s dissent:

The Equal Protection Clause of the Fourteenth Amendment enshrines a guarantee of racial equality. The Court long ago concluded that this guarantee can be enforced through race-conscious means in a society that is not, and has never been, colorblind …

Today, the Court concludes that indifference to race is the only constitutionally permissible means to achieve racial equality in college admissions. That interpretation of the Fourteenth Amendment is not only contrary to precedent and the entire teachings of our history, but is also grounded in the illusion that racial inequality was a problem of a different generation. Entrenched racial inequality remains a reality today. That is true for society writ large and, more specifically, for Harvard and the University of North Carolina (UNC), two institutions with a long history of racial exclusion. Ignoring race will not equalize a society that is racially unequal. What was true in the 1860s, and again in 1954, is true today: Equality requires acknowledgment of inequality …

Society remains highly segregated … Moreover, underrepresented minority students are more likely to live in poverty and attend schools with a high concentration of poverty … In turn, underrepresented minorities are more likely to attend schools with less qualified teachers, less challenging curricula, lower standardized test scores, and fewer extracurricular activities and advanced placement courses. It is thus unsurprising that there are achievement gaps along racial lines, even after controlling for income differences …

Students of color, particularly Black students, are disproportionately disciplined or suspended, interrupting their academic progress and increasing their risk of involvement with the criminal justice system. Underrepresented minorities are less likely to have parents with a postsecondary education who may be familiar with the college application process. Further, low-income children of color are less likely to attend preschool and other early childhood education programs that increase educational attainment. All of these interlocked factors place underrepresented minorities multiple steps behind the starting line in the race for college admissions.

Don’t Break Up With Your Friends

Here at The Atlantic, Olga Khazan describes a pattern she has noticed in multiple female friendships:

First comes the spark of affinity at the group hang: You loved the Ferrante novels too? Then come the bottomless brunches, if you don’t have kids, or playground dates, if you do. Together, you and your new friend weave text threads scheduling coffee and reassuring each other that you’re being normal and that those other people are being crazy. Periodically, the heart emoji interjects.

Eventually, though, comes a minor affront, a misunderstanding, a misalignment—then another, and another. They’re all small things, of course, but like, she always does this. And then, all too often, comes what is known in therapy circles as the “giant block of text.”

What’s more, she writes, “advice is proliferating on how to aggressively confront, or even abandon, friends who disappoint us. Online guides abound for ‘how to break up with a friend,’ as though the struggle is in what to say, rather than whether to do it. One TikTok therapist suggested that you tell your erstwhile friend ‘you don’t have the capacity to invest’ in the friendship any longer, like you’re a frazzled broker and they’re a fading stock. The massive paragraph of text, though not a friend breakup per se, often reads like one—and leads to one.”

Khazan argues for a different approach:

You don’t need a guide for breaking up with your friends, because you don’t need to break up with your friends. You just need to make more friends … The resounding chorus from everyone I interviewed was that no one person can fulfill all of your needs. Some friends are good listeners, some invite you on fun trips. The person you call in a crisis might not be the one who tells the best jokes at happy hour.

American Spoilsports

In an attempt to attract a younger fan base, professional sports leagues are touting their commitments to social justice. Ethan Strauss argues that the attendant politicization carries a cost:

America is composed of many societies and cultures. Among these cultures is a cohort of people who believe that sports serve a higher purpose, if not a massively important societal function. Kenny Chesney’s red state-rooted song “The Boys of Fall” is a good example. It’s an ode to football, from the high school level on up, that’s deeply emotional and totally without irony.

This game really matters to a lot of people, even if the New York Times so often portrays it in a negative light. As is true of sports generally, it binds the young to the old, and directs men, especially, towards a form of combat engagement that doesn’t raze cities. It’s a spiritual experience, an endeavor with almost mystical properties.

Back before sports became a massive industry, Dutch historian Johan Huizinga wrote Homo Ludens, his famous work on the importance of “play” in culture generation. In it, Huizinga coined the term “magic circle” to describe the space where we suspend normal rules in favor of a temporary artificial reality, e.g. a game. In Huizinga’s construction, we are under a spell when participating in this reality. Those who break the spell are called “spoil-sports,” a term that’s endured to this day. From Homo Ludens:

The spoil-sport shatters the play-world itself. By withdrawing from the game he reveals the relativity and fragility of the play-world in which he had temporarily shut himself with others. He robs play of its illusion — a pregnant word which means literally “in-play” (from inlusion, illudere or inludere). Therefore he must be cast out, for he threatens the existence of the play-community.

In bringing politics to the magic circle, the leagues themselves have become spoil-sports, breaking the spell over certain fans.

More Money, More Problems

At Marginal Revolution, Alex Tabarrok tries to explain why many people think that it was easier for families to thrive in bygone generations, even though the economic data say otherwise. He notes nostalgia and the effects of social media, but focuses on the value of time, drawing on a theory expressed by Staffan Burenstam Linder in The Harried Leisure Class.

Tabarrok writes:

Real GDP per capita has doubled since the early 1980s but there are still only 24 hours in a day. How do consumers respond to all that increased wealth and no additional time? By focusing consumption on goods that are cheap to consume in time. We consume “fast food,” we choose to watch television or movies “on demand,” rather than read books or go to plays or live music performances. We consume multiple goods at the same time as when we eat and watch, talk and drive, and exercise and listen. And we manage, schedule and control our time more carefully with time planners, “to do” lists and calendaring.

That can be difficult:

Time management is a cognitively strenuous task, leaving us feeling harried. As the opportunity cost of time increases, our concern about “wasting” our precious hours grows more acute. On balance, we are better off, but the blessing of high-value time can overwhelm some individuals, just as can the ready availability of high-calorie food.

So, whose time has seen an especially remarkable appreciation in the past few decades? Women’s time has experienced a surge in value. As more women have pursued higher education and stepped into professional roles, their time’s value has more than doubled, incentivizing a substantial reorganization of daily life with consequent transaction costs. It’s expensive for highly educated women to be homemakers but that means substituting the wife’s time for a host of market services, day care, house cleaning, transportation and so forth. Juggling all of these tasks is difficult. Women’s time has become more valuable but also more constrained and requiring more strategic allocation and optimization for both spouses. In previous eras, a spouse who stayed at home served as a reserve pool of time, providing a buffer to manage unexpected disruptions such as a sick child or a car breakdown with greater ease. Today, the same disruption requires a cascade of rescheduling and negotiations to manage the situation effectively.

It feels hard.

Covering similar terrain, Matthew Yglesias argues that “if you want a genuine 1950s lifestyle today, you can probably afford it.” He explains:

Middle-class people from the past were poor by our standards. In 1950, the average new single-family home was 983 square feet. If you’re willing to live someplace unfashionable like Cleveland, I can find you a 1,346-square-foot, three-bedroom house for $189,900. That’s an estimated monthly payment of $1,382 per month or $16,584 per year. Let’s say you’re living by the rule of thumb that says housing should be 30% of your annual income. Well, that pencils out to $55,280 per year. Is that out of reach for the modern Ohioan? The BLS says the mean wage for all occupations in the Cleveland metro area is $59,530. There’s no all-occupations median, unfortunately. But for postal service clerks, the median is $56,200. Suppose you know a skilled trade and you can apply for this mechanic job at the airport that pays $32/hour. That’s north of $60k per year.

So what about child care? Summer camp? All that Baumol stuff? Well, it doesn’t matter, because you’re thriving 1950s-style and your wife takes care of all that. People think it’s weird that you guys only have one car, but that’s the ‘50s for you. It’s a 27-minute commute to your job at the airport by metro. You’re four blocks from the elementary school and two blocks from the playground, so mom and the kids are fine to be carless if you need it for the day, and it’s only a 25-minute walk to the shopping center at Kamm’s Corners.

Of course with three kids and a modest income, you’re not taking vacations by airplane or dining out much, but 1950s people didn’t do that either … For $80 you can get a television with a bigger screen and better resolution than what RCA was selling for $400 in 1965.

Provocation of the Week

In Liberties, James Kirchick argues that an important figure in the struggle for gay rights doesn’t get his due:

While Stonewall was the birthplace of gay liberation, the movement for gay civic equality had begun much earlier. After some fizzling starts in Los Angeles and San Francisco in the early 1950’s, the effort found its footing in the more staid precincts of Washington, D.C. The leaders of this cause may not have been “revolting” drag queens, but they were revolutionaries, of a sort.

The central figure was a Harvard-trained astronomer named Franklin E. Kameny. In 1957, Kameny was fired from his job with the Army Map Service on account of his homosexuality. Thousands of people had already been terminated on such grounds, but Kameny was the first to challenge his dismissal, a decision that would, in the words of the legal scholar William Eskridge, eventually make him “the Rosa Parks and the Martin Luther King and the Thurgood Marshall of the gay rights movement.’” In 1960, Kameny appealed to the Supreme Court to restore his job. The petition that he wrote invoked the noblest aspirations of the American founding: life, liberty and the pursuit of happiness. To the government’s claim that his firing was justified on account of its right to prohibit those engaged in “immoral” conduct, Kameny replied with what was, for its time, a radical, even scandalous, retort: “Petitioner asserts, flatly, unequivocally, and absolutely uncompromisingly, that homosexuality, whether by mere inclination or by overt act, is not only not immoral, but that, for those choosing voluntarily to engage in homosexual acts, such acts are moral in a real and positive sense, and are good, right, and desirable, socially and personally.” He continued: “In their being nothing more than a reflection of ancient primitive, archaic, obsolete taboos and prejudices, the policies are an incongruous, anachronistic relic of the Stone Age carried over into the Space Age—and a harmful relic!”

Inspired by the African-American civil rights movement, Kameny expressed his outrage at being treated as a “second-rate citizen,” and like the leaders of that heroic struggle he appealed to America’s revolutionary founding document for redress:

We may commence with the Declaration of Independence, and its affirmation, as an “inalienable right,” that of “the pursuit of happiness.” Surely a most fundamental, unobjectionable, and unexceptionable element in human happiness is the right to bestow affection upon, and to receive affection from whom one wishes. Yet, upon pain of severe penalty, the government itself would abridge this right for the homosexual.

Kameny’s arguments may have been revolutionary, but his goals were not. He had no desire to overturn the American government; he just wanted it to live up to its self-proclaimed principles. When his appeal to the Supreme Court was denied, Kameny founded the first sustained organization in the United States to represent the interests of “homophiles” (as some gays called themselves at the time), the Mattachine Society of Washington, D.C., in which capacity he led peaceful protests, wrote letters to every member of Congress, and engaged in public awareness campaigns. In 1965 — four years before Stonewall — Kameny organized the first picket for gay rights outside the White House. Men were required to wear jackets and ties; women, blouses and skirts reaching below the knee. “If you’re asking for equal employment rights,” he instructed his nine comrades, “look employable.” Eight years later, he played a crucial role in lobbying the American Psychiatric Association to remove homosexuality from its register of mental disorders.

To the younger and more militant gay liberationists of New York and San Francisco, Kameny’s dedication to liberal reform reeked of assimilationism. Many of them came to view Kameny with contempt, speaking of him in the same tones with which black nationalists derided Martin Luther King, Jr. With his fussy dress codes, his carefully typewritten letters, and his veneration of the Constitution, Kameny was a practitioner of dreaded “respectability politics,” which for radicals (then and now) has been the great scourge of American liberalism. But Kameny was no conformist. In his petition in 1960, he declared:

These entire proceedings, from the Civil Service Commission regulation through its administration and the consequent adverse personnel actions, to respondents’ courtroom arguments, are a classic, textbook exercise in the imposition of conformity for the sake of nothing else than conformity, and of the rigorous suppression of dissent, difference, and non-conformity. There is no more reason or need for a citizen’s sexual tastes or habits to conform to those of the majority than there is for his gastronomic ones to do so, and there is certainly no rational basis for making his employment, whether private or by the government, contingent upon such conformity.

In 2015—fifty years after staging his picket outside the White House, and four years after his death at the age of eighty-six—Kameny was vindicated when the very Supreme Court that had refused to hear his case of wrongful termination ruled that the Constitution recognized the right of same-sex couples to marry.

That’s all for this week. A happy Fourth of July to my American readers. I’ll be on vacation next week, so I’ll see you all the week after that.

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On the first day of class in the fall of 1924, Martha Lum walked into the Rosedale Consolidated School. The mission-style building had been built three years earlier for white students in Rosedale, Mississippi.

Martha was not a new student. This 9-year-old had attended the public school the previous year. But that was before Congress passed the Immigration Act of 1924, banning immigrants from Asia and inciting ever more anti-Asian racism inside the United States.

At the time, African Americans were fleeing the virulent racism of the Mississippi Delta in the Great Migration north and west. To replace them, white landowners were recruiting Chinese immigrants like Martha’s father, Gong Lum. But instead of picking cotton, many Chinese immigrants, like Gong and his wife, Katherine, opened up grocery stores, usually in Black neighborhoods, after being shut out of white neighborhoods.

At noon recess, Martha had a visitor. The school superintendent notified her that she had to leave the public school her family’s tax dollars supported, because “she was of Chinese descent, and not a member of the white or Caucasian race.” Martha was told she had to go to the district’s all-Black public school, which had older infrastructure and textbooks, comparatively overcrowded classrooms, and lower-paid teachers.

Gong Lum sued, appealing to the Fourteenth Amendment’s equal-protection clause. The case went all the way to the U.S. Supreme Court. All nine justices ruled in favor of school segregation, citing the “separate but equal” doctrine from 1896’s Plessy v. Ferguson decision.

[Imani Perry: Lessons from Black and Chinese relations in the Deep South]

“A child of Chinese blood, born in and a citizen of the United States, is not denied the equal protection of the law by being classed by the state among the colored races who are assigned to public schools separate from those provided for the whites when equal facilities for education are afforded to both classes,” the Court summarized in Gong Lum v. Rice on November 21, 1927.

A century from now, scholars of racism will look back at today’s Supreme Court decision on affirmative action the way we now look back at Gong Lum v. Rice—as a judicial decision based in legal fantasy. Then, the fantasy was that separate facilities for education afforded to the races were equal and that actions to desegregate them were unnecessary, if not harmful. Today, the fantasy is that regular college-admissions metrics are race-neutral and that affirmative action is unnecessary, if not harmful.

The Supreme Court has effectively outlawed affirmative action using two court cases brought on by Students for Fair Admissions (SFFA) against Harvard University and the University of North Carolina at Chapel Hill. Organized by a legal strategist named Edward Blum, SFFA filed suit on behalf of Asian American applicants to Harvard as well as white and Asian applicants to UNC to claim that their equal-protection rights were violated by affirmative action. Asian and white Americans are overrepresented in the student body at selective private and public colleges and universities that are well funded and have high graduation rates, but they are the victims?

This is indicative of a larger fantasy percolating throughout society: that white Americans, who, on average, stand at the more advantageous end of nearly every racial inequity, are the primary victims of racism. This fantasy is fueling the grievance campaigns of Donald Trump and Ron DeSantis. Americans who oppose affirmative action have been misled into believing that the regular admissions metrics are fair for everyone—and that affirmative action is unfair for white and Asian American applicants.

It is a fantasy that race is considered as an admissions factor only through affirmative action. But the Court endorsed SFFA’s call for “race neutral” admissions in higher education—effectively prohibiting a minor admissions metric such as affirmative action, which closes racial inequities in college admissions, while effectively permitting the major admissions metrics that have long led to racial inequities in college admissions. Against all evidence to the contrary, the Court claimed: “Race-neutral policies may thus achieve the same benefits of racial harmony and equality without … affirmative action policies.” The result of the Court’s decision: a normality of racial inequity. Again.

This is what the Court considers to be fair admissions for students, because the judges consider the major admissions metrics to be “race-neutral”—just as a century ago, the Court considered Mississippi public schools to be “separate but equal.”

Chief Justice John Roberts, in his majority opinion, recognized “the inherent folly of that approach” but doesn’t recognize the inherent folly of his “race neutral” approach.

History repeats sometimes without rhyming. “Race neutral” is the new “separate but equal.”

The Court today claimed, “Twenty years have passed since Grutter, with no end to race- based college admissions in sight.” In actuality, twenty years have passed, with no end to racial inequity in sight.

Black, Latino, and Indigenous students continue to be underrepresented at the top 100 selective public universities. After affirmative action was outlawed at public universities in California and Michigan in the 1990s, Black enrollment at the most selective schools dropped roughly 50 percent, in some years approaching early-1970s numbers. This lack of diversity harms both students of color and white students.

In its reply brief in the UNC case, SFFA argued that the University of California system enrolls “more underrepresented minorities today than they did under racial preferences,”  referencing the increase of Latino students at UC campuses from 1997 to 2019. But accounting for the increase in Latino students graduating from high school, those gains should be even larger. There’s a 23-point difference between the percentage of high-school graduates in California who are Latino and the percentage of those enrolled in the UC system.

Declines in racial representation and associated harms extend to graduate and professional programs. The UC system produced more Black and Latino medical doctors than the national average in the two decades before affirmative action was banned, and dropped well below the national average in the two decades after.

[Bertrand Cooper: The failure of affirmative action]

Underrepresentation of Black, Latino, and Indigenous students at the most coveted universities isn’t a new phenomenon, it isn’t a coincidence, and it isn’t because there is something deficient about those students or their parents or their cultures. Admissions metrics both historically and currently value qualities that say more about access to inherited resources and wealth— computers and counselors, coaches and tutors, college preparatory courses and test prep—than they do about students’ potential. And gaping racial inequities persist in access to each of those elements—as gaping as funding for those so-called equal schools in the segregated Mississippi Delta a century ago.

So what about class? Class-based or income-based interventions disproportionately help white students too, because their family’s low income is least likely to extend to their community and schools. Which is to say that low-income white Americans are far and away less likely than low-income Black and Latino Americans to live in densely impoverished neighborhoods and send their kids to poorly resourced public schools. Researchers find that 80 percent of low-income Black people and 75 percent of low-income Latino people reside in low-income communities, which tend to have lesser-resourced schools, compared with less than 50 percent of low-income white people. (Some Asian American ethnic groups are likely to be concentrated in low-income communities, while others are not; the data are not disaggregated to explore this.) Predominately white school districts, on average, receive $23 billion more than those serving the same number of students of color.

When admissions metrics value SAT, ACT, or other standardized-test scores, they predict not success in college or graduate school, but the wealth or income of the parents of the test takers. This affects applicants along racial lines, but in complex ways. Asian Americans, for example, have higher incomes than African Americans on average, but Asian Americans as a group have the highest income inequality of any racial group. So standardized tests advantage more affluent white Americans and Asian ethnic groups such as Chinese and Indian Americans while disadvantaging Black Americans, Latino Americans, Native Americans, and poorer Asian ethnic groups such as Burmese and Hmong Americans. But standardized tests, like these other admissions metrics, are “race neutral”?

Standardized tests mostly favor students with access to score-boosting test prep. A multibillion-dollar test-prep and tutoring industry was built on this widespread understanding. Companies that openly sell their ability to boost students’ scores are concentrated in immigrant and Asian American communities. But some Asian American ethnic groups, having lower incomes, have less access to high-priced test-prep courses.

Besides all of this, the tests themselves have racist origins. Eugenicists introduced standardized tests a century ago in the United States to prove the genetic intellectual superiority of wealthy white Anglo-Saxon men. These “experimental” tests would show “enormously significant racial differences in general intelligence, differences which cannot be wiped out by any scheme of mental culture,” the Stanford University psychologist and eugenicist Lewis Terman wrote in his 1916 book, The Measurement of Intelligence. Another eugenicist, the Princeton University psychologist Carl C. Brigham, created the SAT test in 1926. SAT originally stood for “Scholastic Aptitude Test,” aptitude meaning “natural ability to do something.”

Why are advocates spending millions to expand access to test prep when a more effective and just move is to ban the use of standardized tests in admissions? Such a ban would help not only Black, Native, and Latino students but also low-income white and Asian American students.

Some selective colleges that went test-optional during the pandemic welcomed some of their most racially and economically diverse classes, after receiving more applications than normal from students of color. For many students of color, standardized tests have been a barrier to applying, even before being a barrier to acceptance. Then again, even where colleges and universities, especially post-pandemic, have gone test-optional, we can reasonably assume or suspect that students who submit their scores are viewed more favorably.

When admissions committees at selective institutions value students whose parents and grandparents attended that institution, this legacy metric ends up giving preferential treatment to white applicants. Almost 70 percent of all legacy applicants for the classes of 2014–19 at Harvard were white.

College athletes are mostly white and wealthy—because most collegiate sports require resources to play at a high level. White college athletes make up 70 to 85 percent of athletes in most non-revenue-generating sports (with the only revenue-generating sports usually being men’s basketball and football). And student athletes, even ones who are not gaming the system, receive immense advantages in the admissions process, thus giving white applicants yet another metric by which they are the most likely to receive preferential treatment. Even Harvard explained as part of its defense that athletes had an advantage in admissions over nonathletes, which conferred a much greater advantage to white students over Asian American students than any supposed disadvantage that affirmative action might create. And white students benefit from their relatives being more likely to have the wealth to make major donations to highly selective institutions. And white students benefit from their parents being overrepresented on the faculty and staff at colleges and universities. Relatives of donors and children of college employees normally receive an admissions boost.

Putting this all together, one study found that 43 percent of white students admitted to Harvard were recruited athletes, legacy students, the children of faculty and staff, or on the dean’s interest list (as relatives of donors)—compared with only 16 percent of Black, Latino, and Asian American students. About 75 percent of white admitted students “would have been rejected” if they hadn’t been in those four categories, the study, published by the National Bureau of Economic Research, found.

While private and public universities tout “diversity” recruitment efforts, their standard recruitment strategies concentrate on high-income students who are predominantly white and Asian, at highly resourced schools, positioned to have higher grade point averages and test scores that raise college rankings. Public colleges and universities facing declines in state and federal funding actively recruit white and wealthy out-of-state students who pay higher fees. At many institutions, including a UC campus, “admission by exception,” a practice originally promoted as a means of expanding opportunities for disadvantaged groups, has been used to enroll international students with the resources to pay U.S. tuition fees.

Targeting international students of color to achieve greater diversity on campus disadvantages American students of color. Targeting students from families who can pay exorbitant out-of-state fees benefits white families, who have, on average, 10 times the household net worth of Black families.

Affirmative action attempted to compensate not just for these metrics that give preferential treatment to white students, but also for the legacy of racism in society. This legacy is so deep and wide that affirmative action has rightly been criticized as a superficial, Band-Aid solution. Still, it has been the only admissions policy that pushes against the deep advantages that white Americans receive in the other admissions metrics under the cover of “race neutral.”

[Issa Kohler-Hausmann: No one knows what ‘race neutral’ admissions looks like]

If anti-affirmative-action litigants and judges were really supportive of “race neutrality”—if they were really against “racial preferences”—then they would be going after regular admissions practices. But they are not, because the regular admissions metrics benefit white and wealthy students.

Litigants and judges continue to use Asian Americans as political footballs to maintain these racial preferences for white and wealthy students. Particularly in the Harvard case, SFFA’s Edward Blum used Asian plaintiffs to argue that affirmative action harms Asian American applicants. No evidence of such racist discrimination was found in the lower courts. According to an amicus brief filed by 1,241 social scientists, the so-called race-neutral admissions policy SFFA advocated for (which was just adopted by the highest Court) would actually harm Asian American applicants. It denies Asian American students the ability to express their full self in their applications, including experiences with racism, which can contextualize their academic achievements or struggles and counter racist ideas. This is especially the case with Hmong and Cambodian Americans, who have rates of poverty similar to or higher than those of Black Americans. Pacific Islander Americans have a higher rate of poverty than the average American.

Pitting Asian and Black Americans against each other is an age-old tactic. Martha Lum’s parents didn’t want to send their daughter to a “colored” school, because they knew that more resources could be found in the segregated white schools. Jim Crow in the Mississippi Delta a century ago motivated the Lums to reinforce anti-Black racism—just as some wealthy Asian American families bought into Blum’s argument for “race neutral” admissions to protect their own status. Yet “separate but equal” closed the school door on the Lums. “Race neutral” is doing the same. Which is why 38 Asian American organizations jointly filed an amicus brief to the Supreme Court in support of affirmative action at Harvard and UNC.

A century ago, around the time the Court stated that equal facilities for education were being afforded to both races, Mississippi spent $57.95 per white student compared with $8.86 per Black student in its segregated schools. This racial inequity in funding existed in states across the South: Alabama ($47.28 and $13.32), Florida ($61.29 and $18.58), Georgia ($42.12 and $9.95), North Carolina ($50.26 and $22.34), and South Carolina ($68.76 and $11.27). “Separate but equal” was a legal fantasy, meant to uphold racist efforts to maintain these racial inequities and strike down anti-racist efforts to close them.

Homer Plessy had sued for being kicked off the “whites only” train car in New Orleans in 1892. About four years later, the Court deployed the “separate but equal” doctrine to work around the Fourteenth Amendment’s equal-protection clause to defend the clearly unequal train cars and the exclusion of Black Americans like Plessy from better-equipped “whites only” cars. Later, the Court used the same doctrine to exclude Asian Americans like Martha Lum from better-equipped “whites only” schools.

The “separate but equal” doctrine was the Court’s stamp to defend the structure of racism. Just as Plessy v. Ferguson’s influence reached far beyond the railway industry more than a century ago, the fantasy of “race neutral” alternatives to affirmative action defends racism well beyond higher education. Evoking “race neutrality,” Justice Clarence Thomas recently dissented from the Supreme Court decision upholding a provision in the Voting Rights Act of 1965 that prohibits racist gerrymandering.  

Now that “racial neutrality” is the doctrine of the land, as “separate but equal” was a century ago, we need a new legal movement to expose its fantastical nature. It was nearly a century ago that civil-rights activists in the NAACP and other organizations were gearing up for a legal movement to expose the fantasy of “separate but equal.” In this new legal movement, defenders of affirmative action can no longer use the false framing of affirmative action as “race conscious” and the regular admissions metrics as “race neutral”—a framing that has been used at least since the Regents of the University of California v. Bakke decision in 1978, which limited the use of affirmative action. Racist and anti-racist is a more accurate framing than “race neutral” and “race conscious.”  

[From the September 2021 issue: This is the end of affirmative action]

Affirmative-action policies are anti-racist because they have been proved to reduce racial inequities, while many of the regular admissions metrics are racist because they maintain racial inequities. To frame policies as “race neutral” or “not racist” or “race blind” because they don’t have racial language—or because the policy makers deny a racist intent—is akin to framing Jim Crow’s grandfather clauses and poll taxes and literacy tests as “race neutral” and “not racist,” even as these policies systematically disenfranchised southern Black voters. Then again, the Supreme Court allowed these Jim Crow policies for decades on the basis that they were, to use today’s term, “race neutral.” Then again, voter-suppression policies today that target Black, Latino, and Indigenous voters have been allowed by a Supreme Court that deems them “race neutral.” Jim Crow lives in the guise of “racial neutrality.”

Everyone should know that the regular admission metrics are the racial problem, not affirmative action. Everyone knew that racial separation in New Orleans and later Rosedale, Mississippi, was not merely separation; it was segregation. And segregation, by definition, cannot be equal. Segregationist policies are racist policies. Racial inequities proved that then.

The Court stated in today’s ruling, “By 1950, the inevitable truth of the Fourteenth Amendment had thus begun to reemerge: Separate cannot be equal.” But it still does not want to acknowledge another inevitable truth of the Fourteenth Amendment that has emerged today: Race cannot be neutral.

Today, racial inequities prove that policies proclaimed to be “race neutral” are hardly neutral. Race, by definition, has never been neutral. In a multiracial United States with widespread racial inequities in wealth, health, and higher education, policies are not “race neutral.” Policies either expand or close existing racial inequities in college admissions and employment. The “race neutral” doctrine is upholding racist efforts to maintain racial inequities and striking down anti-racist efforts to close racial inequities.

Race, by definition, has never been blind. Even Justice John Harlan, who proclaimed, “Our Constitution is color-blind” in his dissent of Plessy v. Ferguson, prefaced that with this declaration: “The white race deems itself to be the dominant race in this country” and “it will continue to be for all time, if it remains true to its great heritage.”

In the actual world, the “color-blind” often see their color as superior, as Harlan did. In the actual world, an equal-protection clause in a constitution can be transfigured by legal fantasy yet again to protect racial inequity.

“Separate but equal” then. “Race neutral” now.