Affirmative action was always supposed to be a temporary fix, rendering itself obsolete when it finished doing its job bringing diversity and equity to U.S. schools and workplaces. It clearly hasn’t done either—but with a Supreme Court decision expected this month, its obsolescence may come early.
“Of course, anything could happen,” says Debo P. Adegbile, a former member of the U.S. Commission on Civil Rights who currently chairs the anti-discrimination practice at the law firm WilmerHale. Affirmative action as we’ve come to know it—the practice of intentionally considering candidates from underrepresented or marginalized groups in various educational and work contexts—has withstood 45 years of legal challenges, and the Supreme Court has upheld race-conscious college admissions programs in the past, he points out.
But this time could well be different. Legal analysts and diversity, equity, and inclusion professionals are expecting the court’s conservative majority to strike down or severely restrict racial preferences in college admissions—setting a new precedent that could have a ripple effect across American schools and workplaces.
Adegbile is one of the attorneys representing Harvard University in a case that the Supreme Court is expected to rule on this month: Students for Fair Admissions Inc v. President & Fellows of Harvard College—which is being considered along with a similar case, Students for Fair Admissions Inc v. University of North Carolina. In both cases, a deep-pocketed anti-affirmative action legal activist group is challenging the university’s use of race as a factor in admissions decisions, saying the practice discriminates against white and Asian American applicants.
“This is one of the biggest civil rights cases in recent memory,” Adegbile said. “This is about the pathway for educational opportunity, which is about the pathway to achieve the American dream and to ensure that the zip code into which you are born does not determine where you end up in life.”
The big difference this time around is the current court, which leans stridently conservative and has shown itself to be comfortable overturning settled precedent (see Roe v Wade). And there are several other new elements to consider: For one, the Harvard case introduces Asian Americans into the long-running debate, pitting two underrepresented groups against each other and adding a new factor to a conversation that until now has been focused on Black uplift and white grievance.
Louis Menand called affirmative action, and the battle over it, the “eternal bone in the national throat.”
And the country is in a mood. Radical conservative movements have whipped up backlash against various forms of perceived “wokeness.” When it comes to the longtime conservative bugbear of affirmative action, Edward Blum of Students for Fair Admissions has been a major figure, launching an array of interlinked organizations that have expertly navigated the legal system over the years to challenge race-conscious policies in academia, government, and private business. Now conservative activists are drafting behind increasingly hostile culture winds as the country tussles over everything from drag queen library visits to critical race theory.
Harvard’s admissions approach, which is to consider race as one of many factors when assessing a pool of candidates, is the current legal standard under which diversity initiatives operate in higher education. “And so, what the plaintiffs are doing, in this case, is that they're trying to take out the main pole in the tent,” Adegbile says. If Harvard loses the challenge, then the entire tent of affirmative action in selective college admissions will fall.
How did we get here?
In the New Yorker, the essayist Louis Menand called affirmative action, and the battle over it, fundamental to America’s fraught history of race relations, and therefore fundamental to American history: the “eternal bone in the national throat.”
The affirmative action we’re familiar with today began with Executive Order 10925, which established John F. Kennedy’s President's Committee on Equal Employment Opportunity. As chairman of that committee, Lyndon B. Johnson popularized the term “affirmative action.” (You can read more about Hobart Taylor, the remarkable African-American lawyer who coined the term in collaboration with Johnson, in Menand’s New Yorker piece.)
Later, in a 1965 speech at Howard University, then-President Lyndon B. Johnson passionately defended the rationale for his sweeping 1964 Civil Rights Act legislation. “You do not wipe away the scars of centuries by saying: ‘Now, you are free to go where you want, do as you desire, and choose the leaders you please,’” he told the crowd. “You do not take a man who for years has been hobbled by chains, liberate him, bring him to the starting line of a race, saying, ‘You are free to compete with all the others,’ and still justly believe you have been completely fair.”
The landmark 1978 Supreme Court decision on Regents of the University of California v. Bakke, or Bakke for short, was the first significant downgrade to the big idea that Johnson had put forth, and made legal compliance much murkier. The Bakke decision ended what’s known as the “remedial” legal argument—that is, that affirmative action was necessary to address past historical wrongs done to minority groups. And it eliminated the use of admissions quotas. After Bakke, race may be considered, but only as one of many factors and only as a means to the end of educational diversity, the standard that Harvard has used until now.
“The rationale allowed affirmative action to endure but left it vulnerable, stripping away history and the moral underpinning to remedy racism,” wrote Emily Bazelon in the New York Times Magazine. “Ever since Bakke, the defenders of race-based preferences have had to fight to preserve it, in effect, with one hand tied behind their backs.”
“[Affirmative action] just selectively picks and chooses people of color who can be allowed to participate in elite institutions.”
Cedric Merlin Powell, Broady Endowed Chair and visiting professor of law at Howard University
And yet even in its earliest iterations, affirmative action was a messy business, a heartfelt solution poorly designed to address the real problem. In the face of persistent and systemic inequity across all aspects of American life—the racial wealth gap and impacts of slavery, institutionalized racism, redlining, unequal health outcomes, and the like—affirmative action could never have been equal to the broader task of repairing the lingering damage of a centuries-long racial caste system.
“It's really an incremental remedy and doesn't really deal with substantive equality,” says Cedric Merlin Powell, a law professor at the University of Louisville who holds the Broady Endowed Chair as a visiting professor of law at Howard University. “It just selectively picks and chooses people of color who can be allowed to participate in elite institutions.”
Perhaps the strongest evidence that affirmative action has not finished the job it set out to do is in the data: A 2017 New York Times analysis found that Black and Hispanic students were even more underrepresented at top colleges and universities than they were 35 years earlier. Black students made up just 6% of freshmen classes but 15% of college-age Americans, the analysis found—a rate virtually unchanged since 1980.
But there’s reason to think that the situation might have been even worse without affirmative action. One study conducted before the current cases landed at the Supreme Court found that 23% fewer students of color were admitted to highly selective colleges after affirmative action was banned in a state (typically through local ballot measures).
“Even though imperfect, I give affirmative action a B-/C+ grade,” says Powell. And losing it will be a blow. “The initial effects are going to be devastating,” he says, predicting that many academic institutions will lack the resources, imagination, or courage to find legally compliant ways to attract and retain students of color.
Affirmative action has been imperfectly effective as a line in the sand at work, too, after decades of rulings and rules that softened the language and ultimately eliminated the use of quotas in hiring and federal contracting. Still, a 2013 analysis of states that had completely eliminated affirmative action for women and racial minorities found that workplaces quickly became significantly less diverse—whiter, and more male.
This year’s Fortune 500 list includes 52 women CEOs and eight Black CEOs—low numbers, out of 500 companies, but an all-time high for both demographics. These days, employers do seem to be in more inclusive moods, and there’s reason to think the upward trajectory for representation might continue, at least under the current system. Companies big and small have bought into the business case for diversity, noting that getting it right helps leaders to make better decisions, improves financial performance, and raises worker satisfaction and retention. By July 2022, all companies in the Fortune 100 had made detailed, public commitments to DEI initiatives.
But recent ideological headwinds have worried the corporate DEI community, as have reports that companies in tech and beyond have begun cutting diversity-focused staffers, citing a wobbly economy. And if the Supreme Court does strike down affirmative action in college admissions, the knock-on effects are likely to be devastating for companies, DEI experts told my colleagues Trey Williams and Paige McGlauflin for a recent Fortune article: “It may be harder to live up to the ESG commitments that companies have made to investors, for example. And less diverse workforces may turn off customers, who increasingly expect brands to be inclusive. More homogenous workplaces are also less appealing to millennial and Gen Z workers, who have high expectations of workforce diversity.”
DEI teams in the corporate world are mobilizing to prepare for the new reality, shoring up data-driven justifications for their efforts, rethinking hiring pipelines for diverse recruitment, and preparing staffers for the new challenges of the era ahead.
Powell worries that slow-moving or underprepared institutions will struggle to find ways to address diversity concerns with a new legal standard in place. “This is a time to have already thought this through,” he says.
And for companies where leadership was never deeply invested in diversity efforts, the ruling provides a convenient excuse to opt out, one DEI professional told my Fortune colleagues: “After this you’ll really be able to identify who has always been on board and who never really was.”
Ending in a whimper
If the Supreme Court strikes down affirmative action in college admissions, “I think it really begins to throw into jeopardy whether or not we can continue to use race and ethnicity as a demographic identifier,” Richard Leong, a senior strategist at Collective, a DEI consultancy headquartered in Brooklyn, told my Fortune colleagues.
That may sound alarming to Americans who grew up in the six decades since modern civil rights legislation became the law of the land, but Powell argues, it perhaps shouldn’t surprise us: Fundamentally, it’s who we are.
In his book, “Post-Racial Constitutionalism and the Roberts Court,” Powell explains that the support for a race-neutral way of operating is as American as apple pie. I asked him for a history lesson.
“To understand the arguments that are happening today, we have to go back to the Reconstruction Amendments,” he tells Fortune. These were the post-Civil War government’s attempts to establish a fair post-slavery world. Known individually as the Thirteenth, Fourteenth, and Fifteenth amendments to the Constitution and adopted between 1865 and 1870, they side-stepped the true work of reconciliation, Powell argues. “They establish a working definition of discrimination so narrow that its existence is effectively a myth.”
The attitude was: End of slavery? End of problem. And that notion is such a part of the background music of American life that even subsequent remedies—Johnson’s legislative call for justice, or any of the detailed research that demonstrates the existence of systemic racism—hasn’t made a dent.
That’s likely why, as a 2022 Pew survey found, affirmative action is broadly unpopular—some 74 percent of Americans don’t want race and ethnicity considered in admissions decisions. Some argue that it is unnecessary, while for others it feels stigmatizing—and in a country in love with the notion of pull-up-your bootstraps meritocracy, it’s sometimes seen as downright un-American.
There are about 15 times as many students from wealthy families at Harvard as students from poor families.
Even among self-described liberals who are generally in favor of promoting diversity, there are those who believe that a focus on race was a missed opportunity from the start. Richard D. Kahlenberg, a non-resident scholar at Georgetown University and self-described “Bobby Kennedy liberal” counts himself in this group, and has long been a critic of race-based diversity measures. “I'm someone who believes that in higher education, racial and economic diversity are both important,” he says, arguing that cherry-picking students who fit the racial criteria but are from privileged backgrounds may fulfill the letter of the law on affirmative action, but it sidesteps its spirit.
The Black and Hispanic students that elite universities select are mostly upper-middle-class, he says, and universities generally don't cast a wider net of economic need. “A place like Harvard is majority-minority, which I think is something to celebrate,” he says. (That milestone was first achieved in 2017, and a survey of the class of 2022 found that 51% of students identified as non-white: about 18% Asian, 11% Black, 6.5% Latino, and 6% American Indian or Alaska Native, with some 14% identifying as multiracial.)
But despite this visible racial diversity, Kahlenberg points to research showing that wealthy students of all races far outnumber poor students at Harvard. Indeed, one recent analysis found that only 4.5% of students had family incomes in the bottom 20% of Americans, and 67% were in the top 20%—meaning that there are about 15 times as many students from wealthy families at Harvard as students from poor families.
The domino effect
If the Supreme Court does what it’s expected to do and makes a race-neutral standard the law, then expect the legal and legislative floodgates to open, just as they did after the Roe v Wade decision, says Adegbile.
“There are people waiting to take the words of the ruling and bring carry-on cases in a different context,” he explains. “There are already people who are filing cases that are pushing back on the administration, on corporate America, for any effort to lean forward and try and introduce something that looks like a corrective or rebalancing.”
That’s certainly the plan within the powerful network Edward Blum and his ideological companions have created. Along with his Students for Fair Admissions Inc., there is also the Project on Fair Representation, which in 2021 threatened legal action against Coca-Cola if the drinks company didn’t reverse a new requirement that 30% of its general counsel’s billable hours would come from diverse attorneys, and at least half of those hours from Black attorneys. A third group, the Alliance for Fair Board Recruitment, also created by Blum, sued Nasdaq over a 2021 rule that requires Nasdaq-listed companies to publicly disclose the diversity of their boards, with an eye to achieving specific representation goals by 2026.
“I'm willing to be part of an unorthodox alliance of strange bedfellows because I think the ultimate result will be something good for the nation."
Richard D. Kahlenberg, non-resident scholar at Georgetown University
And Blum is far from alone; there are plenty of groups and individuals poised to make noise at any opportunity, including America First Legal, created by President Trump’s immigrant policy architect, Stephen Miller, which has been racking up legal victories, challenging initiatives designed to address racial disparities, and dismantle voting and LGBTQ rights. BlackRock and other fund managers have been targeted for their embrace of environmental, social and corporate governance investment standards—drawing lawsuits, proxy threats, and losing state pension fund deposits.
Even in this climate, many experts Fortune spoke with expressed hope that the end of affirmative action will spur serious institutions to invent more thoughtful, creative, and inclusive solutions. But it will take work.
“I'm convinced that at the end of the day that, you know, paradoxically, a conservative Supreme Court decision on race will yield a number of progressive policy outcomes,” says Kahlenberg. In selective universities, he suggested, these could include increasing financial aid budgets; recruiting top students from high schools in poor communities and encouraging transfers from community colleges; and dropping the use of legacy preferences (which disproportionately benefit wealthy white students). And he pointed out that some of these approaches are already being implemented in states where affirmative action has already ended.
Kahlenberg, who has made these arguments as an expert witness in litigation brought by Students for Fair Admissions, acknowledges that his goals as a liberal are quite different from those of conservative anti-affirmative activists like Blum.
“I'm willing to be part of an unorthodox alliance of strange bedfellows because I think the ultimate result will be something good for the nation,” he tells me, then pauses. “But it is uncomfortable.”
