Debra Thompson is an associate professor of political science and Canada Research Chair in Racial Inequality in Democratic Societies at McGill University. She is the host of the In/Equality podcast from the Institute for Research on Public Policy.
It was only a matter of time.
On Thursday, the conservative supermajority of the United States Supreme Court ruled that the race-conscious admissions programs at Harvard University and the University of North Carolina are unconstitutional, violating the Equal Protection Clause of the Fourteenth Amendment.
It overturned the precedent set in the 2003 case of Grutter v. Bollinger, when the Court upheld that race could be used in admissions in a “narrowly tailored” way to further the compelling interest of attaining a diverse student body. Clearly overestimating the efficacy of affirmative action, or maybe just crafting a precedent-setting legal opinion based on wishful thinking, the majority wrote at the time 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.”
In 2003, Justice Sandra Day O’Connor and her colleagues surely could not have predicted that just 20 years later, the concerted efforts by the Republican Party to reshape the court (including blocking Merrick Garland’s nomination in 2016) have shifted its ideological balance to the right for at least a generation. Affirmative action, like women’s reproductive rights, or any number of other protections that once seemed entrenched because they so clearly aligned with the democratic goal of creating a more equitable society, were doomed the minute this court was born.
Its demise was staved off in the last affirmative action case to be heard by the Supreme Court, Fisher v. University of Texas (2016), by a 4-3 razor-thin margin. Like many rejected white applicants to elite institutions, Abigail Fisher chose to blame affirmative action instead of the hard truth, that her grades were simply not good enough for her to gain acceptance to UT-Austin. And when her claims were rejected by the Supreme Court as well, Ms. Fisher joined her patron Edward Blum, the conservative mastermind and financial backer behind Ms. Fisher’s two Supreme Court cases and the Shelby County v. Holder decision in 2013, in which the Supreme Court effectively gutted the Voting Rights Act, to form Students for Fair Admissions, the organization that brought the most recent cases involving Harvard and UNC to the Supreme Court.
These efforts were going to win, sooner or later. And not just because of the stacked court, the millionaire-backed test cases and, frankly, the questionable admissions practices at many elite American universities (though it is curious that there is surprisingly little outrage about the admission preferences for the children of donors, the legacy admits, and athletes, the majority of whom are white). And the victory was certainly not because affirmative action violates the Fourteenth Amendment.
It was only a matter of time before the demise of affirmative action because the bottom line is that most Americans are absolutely fine with living in a highly unequal society, especially when it manifests as racial disparities in education.
Education in the United States is extraordinarily unequal. The majority of children in K-12 education still attend racially concentrated schools; more than a third of students (around 18.5 million) attend a school where 75 per cent or more of the student population comes from one racial background and 14 per cent of students attend a school where 90 per cent or more of the students were from a single race. A 2019 study found that non-white school districts get $23-billion less than white districts that serve the same number of students. Because public schools are largely funded by property taxes, schools in low-income communities are vastly under-resourced compared with schools in wealthier, and whiter, neighbourhoods.
And so when it comes to gaining admission to highly selective elite universities, these disadvantages compound. Elite universities have always been for the wealthy, and it is for precisely this reason that universities such as Harvard, the University of North Carolina, and the University of Texas at Austin have been targets for test cases.
As Jay Caspian Kang has argued, the battle over affirmative action is really a fight over who can become (or remain) an elite. Even if the affirmative action program at Harvard tilted the scale in favour of its Black students – still only 15 per cent of the admitted class of 2026 – that’s a tiny number of Black people now poised to join a political and economic elite invested in maintaining economic inequality. But make no mistake: the end of affirmative action also makes the likelihood of shifting the racial disparities in access and attainment in higher education much, much smaller.
Against the behemoth of the inequalities built into the American Dream, affirmative action never really stood a chance. But it was worth fighting for, nevertheless.