So it’s over. Seriously. It’s hard to find a simple workaround to rescue affirmative action in college admission after today’s 6-3 Supreme Court ruling that the programs at Harvard and the University of North Carolina violate the 14th Amendment. Oh, given time, we’ll come up with something. But Chief Justice John Roberts’s majority opinion paints so broadly that those of us who hope to find a path around it will have to be exceedingly clever.
Let’s start with what the majority got right.
First, as Roberts writes, colleges and universities should not be allowed to “establish quotas for members of certain racial groups or put members of those groups on separate admissions tracks” — a quotation drawn from the Court’s 2003 opinion in Grutter v. Bollinger. I agree. Not only are quotas intrinsically bad, but as the court points out, they lead to confusion, such as casually lumping East Asians and South Asians together, and fights over who counts as Hispanic. (Also, although Roberts doesn’t mention the point, over who counts as Black.)
