The Affirmative Action Ruling Explained, From Bakke to the Harvard Case

Justice Sandra Day O'Connor wrote, in 2003, that she expected the use of racial preferences in college admissions would no longer be necessary in twenty-five years. Twenty years later, almost to the month, the Supreme Court decided it was not going to wait. If you ever want to know how long "temporary" lasts in American government, the answer, apparently, is until a lawsuit gets to Washington.

Let me do something helpful with the decision in Students for Fair Admissions v. Harvard, decided in 2023. Most commentary on it was written by people who had already decided how they felt. I want to walk you through it the way a good lawyer would: in order, case by case, so that you can see how the Court got from Bakke in 1978 to the end of race-conscious admissions in 2023, what the reasoning was, what the best argument on the other side was, and what the ruling does not forbid. Whether you cheered or winced, you should know what it says.

What the law says before any case

Begin with the text. The Fourteenth Amendment, ratified in 1868, says no state shall "deny to any person within its jurisdiction the equal protection of the laws." The word that matters is person. It does not say group, class or race. Title VI of the Civil Rights Act of 1964 carries the same idea into federal funding: no person shall, on the ground of race, color or national origin, be excluded from participation in, denied the benefits of or subjected to discrimination under any program receiving federal financial assistance. Practically every college in the country takes federal money, in the form of student aid if nothing else, so Title VI reaches private universities as well as public ones.

When the government classifies people by race, the courts apply the most demanding test in constitutional law, strict scrutiny. The government must show a compelling interest, and the classification must be narrowly tailored to serve it. That test is the frame for everything that follows.

Step one: Bakke (1978)

The University of California at Davis medical school had a special admissions program that set aside sixteen of one hundred seats in each entering class for minority applicants. Allan Bakke, a white applicant, was rejected twice, and sued. The Court was badly divided, and the controlling opinion was written by Justice Lewis Powell, speaking only for himself.

Powell's opinion did two things at once. First, it struck down the Davis set-aside: a rigid quota that excluded applicants from a share of the seats on the basis of race was unconstitutional. Second, it said that a university's interest in the educational benefits of a diverse student body was compelling enough that race could be considered as one factor among many in a flexible, individualized review. He pointed to Harvard's admissions approach, which treated race as a plus in a holistic file, as an acceptable model.

That's the foundation. For the next forty-five years, "diversity" was the only interest the Court accepted as compelling in higher education, and quotas were off limits. Notice how thin the base was: it rested on one justice's opinion in a fractured decision.

Step two: Grutter and Gratz (2003)

In 2003 the Court decided two companion cases from the University of Michigan.

In Grutter v. Bollinger, the Court upheld the law school's admissions policy by a 5-4 vote. Writing for the majority, Justice O'Connor held that the law school had a compelling interest in the educational benefits of diversity, and that its holistic review, which considered race as a "plus" without a quota and aimed at a "critical mass" of minority students, was narrowly tailored. She added the sentence I opened with: the Court expected that, twenty-five years from then, the use of racial preferences would no longer be necessary.

In Gratz v. Bollinger, decided the same day, the Court struck down the university's undergraduate policy, which automatically gave a bonus of twenty points to applicants from underrepresented minority groups. That mechanical approach, the Court said, was not narrowly tailored; it made race decisive for a typical minimum-qualified applicant. The line was drawn between an individualized consideration and an automatic thumb on the scale.

Two features of Grutter matter later. The Court deferred to the university's judgment that diversity was educationally valuable. And it hinted at an end date. Both would come back.

Step three: Fisher (2013 and 2016)

Abigail Fisher, a white applicant, was rejected by the University of Texas at Austin, which used a plan with two parts: the Top Ten Percent Law, under which students in the top tenth of their Texas high school classes were admitted automatically, and a holistic review for the rest of the class, in which race was a factor.

In Fisher v. University of Texas (2013), the Court, 7-1 in an opinion by Justice Kennedy, held that the lower court had been too deferential. A university's good-faith assertion that race-conscious admission is needed isn't enough; the courts must themselves examine whether workable race-neutral alternatives would achieve the educational benefits. The Court sent the case back.

In Fisher II (2016), the Court upheld the Texas plan by a 4-3 vote, with Justice Kagan recused and Justice Scalia having died earlier that year. Justice Kennedy, writing for the majority, accepted that the university had shown its approach was necessary on the record in that case. The decision looked like a win for race-conscious admissions. But it left strict scrutiny standing, and it let the question of how to prove "necessary" stay open. The door was ajar.

One more case belongs here. In Schuette v. Bay Area Defend Affirmative Action (2014), the Court upheld a Michigan constitutional amendment, adopted by voters, that banned racial preferences at the state's public universities. The ruling confirmed that states could choose a race-neutral path on their own.

Step four: Students for Fair Admissions (2023)

Students for Fair Admissions, a group founded by Edward Blum, sued Harvard and the University of North Carolina. The cases were consolidated for argument, and decided on June 29, 2023. In an opinion by Chief Justice Roberts, the Court held that both admissions programs violated the law: UNC's, a public university's, violated the Equal Protection Clause, and Harvard's, a private university's, violated Title VI. The vote was 6-3 in the North Carolina case, and 6-2 in the Harvard case, since Justice Jackson was recused from it. The Court also held that the Title VI standard and the Equal Protection standard are the same for this purpose, which is why a private school was bound the same way as a public one.

Why did the programs fail? The Chief Justice gave four reasons.

1. The interests were not measurable. The universities pointed to goals such as training future leaders, preparing graduates for an increasingly diverse society, and promoting the robust exchange of ideas. The Court called these commendable but too amorphous for a court to examine. How do you measure whether a classroom has enough "leadership potential" or "diversity of viewpoint"? Strict scrutiny asks for a goal a court can check.
2. Race was used as a negative. Admissions seats are a fixed number. A benefit given to some applicants because of race is, necessarily, a disadvantage to others. The Court said a university may not do that, even if the intention is benign.
3. The programs rested on stereotypes. The use of racial categories assumes that members of a race think alike or share experiences. The Court observed that the categories used by the universities were themselves imprecise, broad and arbitrary. They lumped together very different groups.
4. There was no end point. Grutter had assumed that race-based admissions would not last forever. The universities had offered no principled limit, and the Court said that without one, the programs would continue indefinitely.

Strictly, the opinion did not overrule Grutter by name. It said the universities' programs could not be reconciled with the Equal Protection Clause and that the Grutter framework had been applied in a way that undermined the standard. What it did in effect was end the practice. In a footnote, the Court noted that it was not deciding anything about military academies, which may have interests of their own.

For readers who want the plain-English guide to reading opinions like this, How to Read a Supreme Court Opinion Without a Law Degree is a good companion. For the method of interpretation underneath the reasoning, see Originalism Explained for People Who Skipped Law School.

The strongest argument on the other side

Here's the best argument for the diversity rationale, and it deserves a fair statement.

A university isn't only a degree factory. It is a place where students learn from each other, and what they learn depends on who is in the room. A seminar on American history is richer when it contains students who grew up in different places and had different experiences. For a long period of American history, the color of a person's skin shaped his or her experience in profound ways, from schools to neighborhoods to credit. A university that ignores race, the argument runs, ignores the one variable that explains a great deal about an applicant's life, and in practice a race-blind process will produce fewer Black and Hispanic students at the most selective schools. After California banned racial preferences in 1996 through Proposition 209, enrollment of those students dropped at the most selective campuses of its public university system. And the leaders of tomorrow often pass through selective schools, which gives them an interest in who gets in. Justice Sotomayor and Justice Jackson made versions of this case in their dissents.

That is an argument about real values: opportunity, fairness and the shape of the leadership class. It should be answered, not mocked.

The answer

Here are the replies, in order.

1. The Constitution protects persons. The Equal Protection Clause is about the individual applicant, not the group. Justice Harlan, dissenting in Plessy v. Ferguson in 1896, wrote that "our Constitution is color-blind," and the sentence has been quoted in the Court's opinions on race ever since. A seventeen-year-old does not get to choose his race, and a law that sorts him by it needs a justification stronger than comfort.
2. The seats are zero-sum. A preference for one applicant is a penalty for another. An admissions officer can say the program helps some students, but not that it harms none.
3. The goal can't be measured. If a university cannot say when it has enough diversity, the practice has no limit. A rule without a limit is not narrow tailoring.
4. Alternatives exist. The Court's own Fisher cases required universities to look at race-neutral methods. Those include preferences based on socioeconomic disadvantage, percentage plans like Texas's, recruiting at more high schools, expanding transfer pipelines from community colleges, and rethinking preferences for legacies and donors' children, a question on which conservatives are divided. Several states banned racial preferences years before 2023 and kept running universities.
5. The problem starts earlier. If students arrive at eighteen with unequal preparation, the repair is at seven, not at eighteen. That's an argument for school choice and for fixing failing schools, which is where most of the energy of this movement belongs. See Seven School Choice Myths Your Neighbor Believes and What the Record Shows.

A note on one claim you will hear: some parties argued that Harvard's process disadvantaged Asian American applicants. Harvard denied it, and the lower courts did not find intentional discrimination. The Supreme Court did not rest its decision on that dispute. It rested on the use of race itself.

What the ruling does not forbid

Here is where overclaiming begins on both sides. The decision did not ban everything people think it banned.

• It does not forbid an applicant from writing about race. The Chief Justice wrote that a university may consider an applicant's discussion of how race affected his or her life, so long as the discussion is tied to a quality of character or a unique ability, and the applicant is treated as an individual. The Court added that a university cannot use essays as a back door to what it cannot do directly.
• It does not forbid race-neutral outreach. Recruiting at more schools, funding scholarships open to all, and building partnerships with community colleges are all permitted.
• It does not forbid considering socioeconomic disadvantage or adversity. A university can ask what obstacles an applicant overcame.
• It does not decide military academies. The Court said so in a footnote.
• It does not reach private employers. That is a different statute, Title VII.

Equally, the decision does not end the argument over proxies. Critics say some colleges may try to reach the same result by other means, and the Court has said that what cannot be done directly cannot be done indirectly. Enforcement will come from courts, complaints and the Education Department, and the question of how aggressively to pursue it will be argued for years.

What it means for families

If you are a parent of a high school junior, the practical advice is mundane. Build the strongest academic record you can, write an honest essay, and look at net price, not prestige. Read the college's admissions statements and the Common Data Set. If you suspect a school is breaking the rule, document the facts and consider a complaint to the Education Department's Office for Civil Rights. And think about the larger picture of how colleges and the federal government interact, which is the subject of Accreditation, the Gatekeeper Nobody Elected That Decides Who Gets Federal Money, and the diversity bureaucracy discussed in The College That Turned Down Washington's Money and What It Teaches Us.

The verdict

Here is mine. The decision in Students for Fair Admissions was right on the text and right on the principle. A rule that sorts seventeen-year-olds by race and promises to stop someday has to stop someday. Forty-five years was long enough for "someday." The Court did not say that diversity is unimportant. It said the Constitution does not let the government pursue it by treating citizens differently according to their race.

The work that remains is not in the Supreme Court. It is in the first-grade classroom and the middle-school math class, where an opportunity gap becomes a college gap. If we spend the next generation arguing about admissions essays and ignoring the schools that send children to the starting line already behind, the Court's decision will have changed the paperwork and not the country.

The bottom line

• The line of cases runs from Bakke (1978) through Grutter and Gratz (2003) and Fisher (2013, 2016) to Students for Fair Admissions (2023), which held that Harvard's and UNC's race-conscious programs violated Title VI and the Equal Protection Clause.
• The Court gave four reasons: the interests could not be measured, race was used as a negative, the programs relied on stereotypes, and they had no end point.
• The ruling does not bar an applicant from discussing how race shaped her life, race-neutral outreach, or consideration of socioeconomic hardship.
• The best case for diversity deserves an answer, and the answer is that the Constitution protects individuals and that real opportunity is built long before the admissions office.
• Put your energy where it counts: better schools, school choice, and clear information about net price and results.