The End of Affirmative Action? Nope. Ever?

Editor’s Note: This article previously appeared in a different format as part of The Atlantic’s Notes section, retired in 2021.

Back in December, when the Supreme Court held oral arguments for Fisher v. University of Texas, we started a robust reader debate on affirmative action in Notes. (You can peruse it from the beginning here.) In a 4-3 decision this morning, the court upheld UT-Austin’s program for increasing student diversity partly based on race. The ruling is a “substantial defeat” for opponents of affirmative action, says Garrett Epps. On the deciding swing vote:

For the first time in his judicial career, Kennedy gave his approval to a race-based affirmative-action program. And he did so in an opinion that clearly reaffirmed the constitutional rationale for such programs first enunciated by Justice Lewis F. Powell Jr. in the 1978 case of Regents of University of California v. Bakke and reaffirmed by the court majority in the 2003 case of Grutter v. Bollinger.

Yet: “Kennedy was careful to clothe his opinion in narrow language that appeared to leave larger questions open. Thus, a nine-justice court (if such a unicorn is ever found in the wild) might one day reconsider the issue.” That would be just fine with this reader:

We still need affirmative action right now. BUT if we ever want to gain true equality, benefits based on race will have to go, just the same as racial degradation needs to go. Nobody can deny that someday soon affirmative action will be gone.

When would that be—by what metric? If you’re a backer of affirmative action and want to tackle that question, please drop us a note. This reader suspects the policy will never be phased out:

AA used to be justified as a tool to achieve equality, or to redress past wrongs. Now the justification has shifted: It is now a tool used to make sure that classes are diverse, regardless of whether all the applicants are on a level playing field. This ruling ensures that affirmative action is now a permanent fixture of American colleges.

But this next reader points to where AA is not a fixture at all:

I’m so glad I live in a state like California where we understand that race should not matter in college admissions [due to Proposition 209, approved by votes in 1996]. And with a colorblind system, we have a majority non-white state college system. The California experience pretty much shows that affirmative action is unnecessary in getting non-white minorities into college.

Here’s a statistical chronology of that “majority non-white state college system”:


Since 2010—the last year on that chart—another ethnic group has now surpassed White. According to a 2014 piece from US News & World Report:

In California, the state’s flagship, nine-school University of California system announced an eye-opening milestone: that it has admitted more Latino students (29 percent) than whites (27 percent) for the 2014 academic year.

Update from another reader in California:

On the surface, Kennedy’s opinion seems to make sense, as each school can best decide the makeup of the institution and can include race as a factor to address diversity at their particular school. But this decision also brings up some troubling questions. What about diversity of religion? Or age? Females have surpassed males in most undergrad programs. [From that 2014 US News piece: “Women now making up about 57 percent of all college students, an exponential gain compared to around 40 percent in the 1970s, according to the NCES.”] Should being a man be of benefit to the admissions process? Political bent? Sexual orientation?

I don’t know that there’s a slippery slope, but it seems to me that there certainly could be.