The Supreme Court Affirmative Action Rulings: An Analysis

The underlying arguments project clashing worldviews of race and appropriate remedies.

Photo montage showing Harvard’s Widener Library and the edifice of the Supreme Court divided by a gavel.

Editor’s note: Harvard Magazine asked contributing editor Lincoln Caplan, a leading legal-affairs journalist, to analyze the Supreme Court rulings on affirmative action in college admissions.

For almost half a century, race-conscious admissions have been of central importance to Harvard and other selective colleges and universities. Justice Lewis F. Powell, Jr., LL.M. ’32, in his controlling opinion in the landmark case of Regents of the University of California v. Bakke (1978), cited the “Harvard Plan” as a model of that kind of affirmative action and explained why the Supreme Court considered it constitutional: “the path to leadership” must “be visibly open to talented and qualified individuals of every race and ethnicity” because “the ‘nation’s future depends upon leaders trained through wide exposure’ to the ideas and mores of students as diverse as this Nation of many peoples.” It was that foundational program that was upended by the Supreme Court’s rulings in two lawsuits decided yesterday.

Gateways to Opportunity

As gateways to opportunity, those institutions are what Klein professor of law Randall L. Kennedy called “far-reaching training grounds for the power elite.” A decade ago, he wrote, “I champion sensibly designed racial affirmative action not because I have benefited from it personally—though I have” (Kennedy is African American). “I support it because, on balance, it is conducive to the public good. It is a continuation and intensification of an egalitarian and democratic impulse in American race relations that has been gathering momentum, albeit fitfully and with dramatic reversals, since at least the Civil War. 

“Racial affirmative action partially redresses debilitating social wrongs,” he continued, which “have diminished the educational, financial, and other resources that marginalized groups can call upon.” Black and Latino applicants account for only about 20 percent of domestic applicants to Harvard each year, though those groups make up about 30 percent of the population of the United States. Kennedy said, “[I]t is not enough simply to end racist mistreatment. Reasonable efforts to rectify the negative legacy of past wrongs are also morally required.”

Twenty-five years ago, William G. Bowen, LL.D. ’73, and Derek Bok, J.D. ’54, LL.D. ’92—presidents emeritus of Princeton and Harvard, published The Shape of the River, a comprehensive study of results of race-conscious admissions based on a database called College and Beyond. They analyzed the experience of about 45,000 students who were first-year students at 28 elite colleges and universities (Harvard didn’t participate) in 1976 and 1989. Daniel Steiner ’54, LL.B. ’58, and Harvard’s general counsel when Bok was president, wrote in this magazine, “The Shape of the River gives us considerable data” justifying “two clear reasons for supporting race consciousness in admissions to selective schools. First, such a policy helps prepare qualified minority students for the many opportunities they will have to contribute to a society that is still trying to solve its racial problems within a population that will soon be one-third black and Latino. Second, the policy provides a racially diverse environment that can help prepare all students to live and work in our increasingly multiracial society.”

In the foreword to a 2019 edition of the book, the journalist and former dean of and now professor at the Columbia School of Journalism Nicholas Lemann ’76 addressed the difficult and fundamental question, “Why race?” “Why does it deserve primacy among the many other goals these colleges are trying to honor?” He answered, “The persistent, though decreasing, black-white gaps on academic measures are manifestations of how profoundly different the black and white experiences in the United States still are, economically, socially, residentially, educationally, and in almost every other way. Elite universities are trying to do their part to build a society, on campus and afterward, where racial discrimination will not be so pervasive.” 

The extent of race consciousness in admissions as a form of redress has been minuscule compared to the massive scale of the social wrongs, in particular the breadth of the segregation in housing by race, ethnicity, and class that leads to continuing, widespread segregation in public education along those lines—and widespread disparities in educational quality. The redress has also been relatively modest. For 45 years, the form of race consciousness the Supreme Court authorized was limited to providing diversity to a college or university’s student body as opposed to providing a form of compensatory justice for consequences of racism. It was also constrained by strict scrutiny, the rigorous standard of review by courts whose name signals its severe skepticism about the constitutionality of any race-conscious practice. It has been strongly, relentlessly contested. 

The Supreme Court’s ruling that admissions practices of Harvard and the University of North Carolina (UNC) violate the equal protection clause of the Constitution’s Fourteenth Amendment because they give a preference to some applicants based on their race is built on the foundation of longtime opposition. It has often, and often inaccurately, defined race-based affirmative action as a guarantee of results instead of an effort to equalize opportunity, and as a significant penalty against whites and Asian Americans rather than a limited advantage for blacks, Latinos, some Asian Americans, and some other students of color. While a May 2023 poll by the Associated Press-NORC Center for Public Affairs Research found that 63 percent of adults believe that the Court should not prohibit colleges from considering race or ethnicity as one factor in admissions, the sustained campaign against affirmative action has often driven public opinion against the practice in the past generation. 

The decision is momentous, even though it was widely predicted based on the dominance of conservatives on the current Court and of their dubious comments during the oral argument last October. It is expected to cause significant changes in admissions and other education programs around the country and to substantially reduce the number of blacks, Latinos, and other underrepresented groups at colleges and universities. 

Harvard’s incoming president Claudine Gay (she assumes office tomorrow) said in a video about the ruling, “We will comply with the Court’s decision, but it does not change our values. We continue to believe—deeply—that a thriving, diverse intellectual community is essential to academic excellence and critical to shaping the next generation of leaders.” The widespread commitment to diversity and inclusion at colleges and universities is expected to lead them to work at continuing to fulfill that commitment, which will likely lead to further litigation about related issues raised by the ruling. “Universities may define their missions as they see fit,” the Court’s majority opinion asserted: “The Constitution defines ours.”

Dueling Views of Discrimination and Race: The Majority Opinion

In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, in a 6-3 split, Chief Justice John G. Roberts Jr. ’76, J.D. ’79, wrote the majority opinion applying to both the Harvard and UNC cases, joined by the Court’s five other conservative justices. Justice Sonia Sotomayor wrote a dissent joined by Justice Elena Kagan, J.D. ’86. Justice Ketanji Brown Jackson ’92, J.D. ’96, recused herself from taking part in the Harvard case because she had served as a member of Harvard’s Board of Overseers while the case begun in 2014 worked its way through lower federal courts, but joined the dissent as it applied to the companion case about UNC. Jackson wrote a separate dissent about the UNC case, joined by Sotomayor and Kagan. Justices Clarence Thomas, Neil Gorsuch, J.D. ’91, and Brett Kavanaugh each wrote separate concurrences to the majority decision, with Thomas joining Gorsuch’s concurrence. The core of the disagreement is between the Roberts and Sotomayor opinions, speaking for the conservative super-majority and the liberal minority on the Court.

As the Roberts opinion lays out in confident, crisp language, the Harvard and UNC admissions programs are unconstitutional because they did not survive the “daunting two-step examination” of strict scrutiny—whether the use of race in admissions serves compelling governmental interests and, even if it does, whether it is narrowly tailored, or necessary, to achieve those interests. (In a footnote, Roberts wrote that the decision does not address “the potentially distinct interests that military academies may present.”) Harvard’s goals are training future leaders, preparing them for an increasingly diverse society, better educating them through learning alongside students with diverse backgrounds and outlooks, and producing knowledge with the catalyst and confluence of those diverse outlooks. Roberts wrote that those interests and UNC’s similar ones, while “commendable goals,” can’t “be subjected to meaningful judicial review” because “they are not sufficiently coherent.” They are “standardless,” “imprecise in many ways,” and “plainly overbroad.” 

Putting aside those technical aspects of constitutional analysis, Roberts focused on “the twin commands of the Equal Protection Clause that race may never be used as a ‘negative’ and that it may not operate as a stereotype.” About the latter, he contended that giving anyone a plus factor based on their race treats them as a member of a group, not as an individual, and reduces them to a racial caricature since people of the same race have different life experiences, political views, religious beliefs, and other cardinal distinctions. About the former, he wrote, “College admissions are zero-sum. A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.” 

Harvard presented its holistic approach to admissions as individual treatment of each applicant. The heart of the evidence the trial court considered was data about 150,000 applicants to the six Harvard College classes from 2014 through 2019. The data, the federal trial judge Allison D. Burroughs wrote, included “hundreds of variables relating to each applicant’s demographic characteristics, personal background, geographic information, test scores, high school grades, ratings assigned by Harvard’s admissions officers, and Harvard’s admissions decision.” 

A bar chart illustrated eight variables included in the College’s model for deciding on applicants. The most important was the ratings assigned each applicant based on their academic achievements and other key factors, at 38 percent. The smallest was the tip, or plus factor, for race, at 0.2 percent – or 1/190th as significant. Among the top 10 percent of applicants assessed in the Harvard case, measured by grade point averages and standardized test scores, Harvard rejected more than two-thirds of the Latino applicants and half of the black applicants. Race was not a guarantee of admission, or a big enough plus factor to lead to the admission, of many otherwise very strong black and Latino applicants. 

During the oral argument in the case, an exchange between Roberts and former solicitor general Seth P. Waxman ’73, representing Harvard, foreshadowed this critical point of contention. The chief justice posed a hypothetical about a black applicant from an affluent family in a wealthy suburb whose parents went to Harvard and gets a tip because of his race. Waxman responded that not every black applicant got a tip and cited the evidence in that bar chart about the microscopic size of the advantage, even when an applicant did get a tip because of their race.

Roberts’s and Waxman’s clashing interpretations of that evidence went to the heart of the disagreement in the case:

Roberts: “ – it is not zero.”

Waxman: “It is very close to zero.”

Roberts: “Well, so there’s only a little racial discrimination in the case.”

Waxman: “Are you asking me whether Harvard is—you’re asking me to answer a question that assumes that Harvard is discriminating on the basis of race? No. I can’t accept that.”

Roberts and Waxman seemed to understand the concept of discrimination very differently. To the chief justice, as he indicated in part of his opinion, penalizing someone on the basis of race or, on the other hand, rewarding them for that reason are both discrimination. Any plus factor for an applicant because of their race not given to other applicants is a penalty, and a negative, for the others. To Waxman, the former—often called invidious discrimination—is categorically different from the latter, which is called affirmative action to make plain that difference.

The first substantive section of the chief justice’s opinion for the Court addresses this issue as the primary basis for the Court’s decision: “the ‘core purpose’ of the Equal Protection Clause,” he wrote, is “do[ing] away with all governmentally imposed discrimination based on race.” “‘If both are not accorded the same protection, then it is not equal.’” “Eliminating racial discrimination means eliminating all of it.” Roberts locates this view in the history of the Fourteenth Amendment (“the foundational principle” of “the absolute equality of all citizens of the United States politically and civilly before their own laws”) and in the most important Supreme Court decision of the twentieth century, Brown v. Board of Education, which relied on the amendment’s equal protection clause to strike down segregation of black young people in separate and, by the Supreme Court’s judgment, unequal public schools. Under that view, Brown outlawed all race-based forms of different treatment of students in education—positive, or affirmative, action, as well as negative, or racist, discrimination.  

That view is one of the defining themes of Roberts’s 18 years on the Court. In 2006, he wrote in an opinion, “It is a sordid business, this divvying us up by race.” In 2007, he wrote, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Each time he has expressed this conviction, he has asserted an axiom of logic (which can also be read as illustrating what the New York Times columnist Jamelle Bouie recently described as the aim of “a conservative court to construct a conservative Constitution for the sake of a more conservative political order”). 

The Dissents: Exclusion vs. Inclusion

In 2014, when the Court upheld a Michigan constitutional amendment that bans race-consciousness in admissions in the state’s public universities, Justice Sonia Sotomayor seemed to retort to the chief justice: “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.” In her dissent in the Harvard case, which is 69 pages long, or 29 pages longer than Roberts’s opinion, she does all of that. It is her most powerful opinion in her 14 years on the Court.

The central difference between the opinions underscores that the United States now has two Constitutions. That makes this case as consequential as the earthshaking decision a year ago terminating the half-century-old federal constitutional right to abortion. In the Constitution favored by the Supreme Court’s conservative super-majority in the admissions case, the Fourteenth Amendment prohibits government from drawing lines based on race. In the other Constitution, embraced by the Court’s liberal minority in the case, the Fourteenth Amendment established a mandate for equal protection of the law, not for color-blind policies. It recognizes a profound difference between exclusion and inclusion, between seeking to perpetuate a racial caste system through racist discrimination and seeking to help eradicate racial subordination and its persistent, rife afterlife through positive race-conscious practices.

Court-watchers seeking to understand the core disagreement in cases about deep controversies often read the primary dissent first. Reading the Sotomayor dissent provides a fuller understanding of the disagreement in the university cases and of the evidence that both sides rely on to make their cases. It underscores that the dispute between the justices in the majority and in dissent is about decisively important history as much as law, about fundamental facts as much as history, and, crucially, about the radical significance of the Court’s ruling. 

Sotomayor explained in detail how she believes the majority opinion whitewashes the history of the Fourteenth Amendment, twists the meaning of Brown v. Board of Education, and overturns 45 years of Supreme Court precedent allowing race-conscious admissions practices by colleges and universities, while pretending not to. Sotomayor wrote to a hoped-for different Court in the future, but also out of urgent concern to American citizens today. The differences of opinion about law held by the majority and the dissent reflect differences in understandings about America’s purpose—about what equality means for all Americans.

The Sotomayor dissent often speaks for itself better than any summary is likely to:            

Today, this Court stands in the way and rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits. In so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter. The Court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society. Because the Court’s opinion is not grounded in law or fact and contravenes the vision of equality embodied in the Fourteenth Amendment, I dissent. 

The foundation of the dissent is its view of the Fourteenth Amendment. Relying on the works of Eric Foner and other authoritative historians, Sotomayor explained that Congress rejected proposals that would have made the equal protection clause of the Fourteenth Amendment color-blind—that it “does not impose a blanket ban on race-conscious policies. Simultaneously with the passage of the Fourteenth Amendment, Congress enacted a number of race-conscious laws to fulfill the Amendment’s promise of equality, leaving no doubt that the Equal Protection Clause permits consideration of race to achieve its goal.” In particular, Congress “eschewed the concept of colorblindness as sufficient to remedy inequality in education” and appropriated federal dollars “explicitly and solely for the benefit of racial minorities” and “for the bounty and prize money owed to ‘colored soldiers and sailors’ of the Union Army.” Sotomayor wrote, “This history makes it ‘inconceivable’ that race-conscious college admissions are unconstitutional.” 

About Brown v. Board of Education: it “was a race-conscious decision that emphasized the importance of education in our society.” And: “The desegregation cases that followed Brown confirm that the ultimate goal of that seminal decision was to achieve a system of integrated schools that ensured racial equality of opportunity, not to impose a formalistic rule of race-blindness.” And: “Affirmative steps, this Court held, are constitutionally necessary when mere formal neutrality cannot achieve Brown’s promise of racial equality.” The Court of the Brown era “made clear that indifference to race ‘is not an end in itself’ under that watershed decision. The ultimate goal is racial equality of opportunity.” Addressing Roberts’s majority opinion, Sotomayor wrote, “The Court’s recharacterization of Brown is nothing but revisionist history,” animated by “rhetorical flourishes about colorblindness.” 

The majority’s view is “grounded in the illusion that racial inequality was a problem of a different generation” rather than “a reality today.” She observed, “Ignoring race will not equalize a society that is racially unequal. What was true in the 1860s,” when the Fourteenth Amendment was written, “and again in 1954,” when Brown was decided, “is true today: Equality requires acknowledgment of inequality.” She went on, “It is thus unsurprising that there are achievement gaps along racial lines, even after controlling for income differences.” 

About Harvard’s and UNC’s race-conscious admissions programs, she wrote: “Acknowledging the reality that race has always mattered and continues to matter, these universities have established institutional goals of diversity and inclusion. Consistent with equal protection principles and this Court’s settled law, their policies use race in a limited way with the goal of recruiting, admitting, and enrolling underrepresented racial minorities to pursue the well-documented benefits of racial integration in education.”

Accordingly, she judged, “At bottom, without any new factual or legal justification, the Court overrides its longstanding holding that diversity in higher education is of compelling value. To avoid public accountability for its choice, the Court seeks cover behind a unique measurability requirement of its own creation.”

In her dissent, Justice Jackson reinforces Sotomayor’s message: 

Our country has never been colorblind. Given the lengthy history of state-sponsored race-based preferences in America, to say that anyone is now victimized if a college considers whether that legacy of discrimination has unequally advantaged its applicants fails to acknowledge the well-documented ‘intergenerational transmission of inequality’ that still plagues our citizenry.

It is that inequality that admissions programs such as UNC’s help to address, to the benefit of us all. Because the majority’s judgment stunts that progress without any basis in law, history, logic, or justice, I dissent.      

She continued: “Do not miss the point that ensuring a diverse student body in higher education helps everyone, not just those who, due to their race, have directly inherited distinct disadvantages with respect to their health, wealth, and wellbeing.” And: “With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat. But deeming race irrelevant in law does not make it so in life. And having so detached itself from this country’s actual past and present experiences, the Court has now been lured into interfering with the crucial work that UNC and other institutions of higher learning are doing to solve America’s real-world problems.”

Assessing Admissions: Prospects after the Court’s Decision

For both parties in the Harvard case, the zero-sum aspect of the College’s admissions—an increase in one group’s admissions must result in a decrease for one or more other groups—was a primary factor in assessing affirmative action. But they approached that very differently. For Students for Fair Admissions (SFFA), which brought the suits, the emphasis was on competition and its conception of fairness—on the applicants who most deserve to become Harvard students based on evidence of academic achievement. SFFA treated a place for a student in the College as an individual prize, as the Roberts opinion did. For Harvard, the emphasis was on wider criteria of merit, including the life experiences of applicants, and on the educational and social benefits of having a student body that is broadly diverse. Harvard treated admission as an investment in the student body and in society, as the Sotomayor dissent did. 

For the Harvard class of 2019, the last year considered in the Harvard case, the College received about 35,000 applications. It sought to accept about 2,000 students and expected about 1,600 to accept their acceptances and matriculate at the College. Eight thousand applicants had perfect grade point averages or GPAs, 3,400 had a perfect score on the math SAT, and 2,700 had a perfect score on the verbal SAT. Of the 35,000 applicants, Harvard considered about 15,000 fully qualified. The 2,000 students accepted were winnowed from that pool.  

The totality of the evidence reminded that, while race was at the center of the university cases, it is by no means the focus of Harvard’s admissions program. Harvard’s Dean of Admissions and Financial Aid William R. Fitzsimmons testified at the trial in the case that the College seeks racial, ethnic, and economic diversity, but also diversity in geographic backgrounds, religious traditions, academic interests and capabilities, worldviews, and other personal experiences and commitments: “it’s diversity in every possible way you can think of it.” Solicitor General Elizabeth Barchas Prelogar, J.D. ’08, distilled for the Supreme Court during oral argument why this diversity matters for the wider world as well as for Harvard and Harvard students: “When students of all races and backgrounds come to college and live together and learn together, they become better colleagues, better citizens, and better leaders.” 

In the wake of the Supreme Court’s decision, it’s a sign of the conservative justices’ aggressiveness in addressing controversial issues they are impatient to reframe that they barely paid attention to the fact that the case was brought on behalf of Asian American applicants, in part on grounds that Harvard intentionally discriminated against them. The federal trial and appeals courts held that Harvard did not do so. A brief for the Asian American Legal Defense and Education Fund argued that SFFA used “Asian American students as pawns in its political chess game” and litigated “under the guise of fighting for Asian Americans” when their real interest was in helping white applicants. 

In the past generation, Asian Americans have made up an increasingly larger share of Harvard students. Harvard has become much more important to them. They have become much more important to Harvard. The share of students applying to Harvard who were Asian American increased from 4.1 percent in 1980 to 20.6 percent in 2019, or by five times—when the share of Asian Americans in the United States population increased from 1.8 percent to 5.9 percent, or by three times. The share of students admitted to Harvard who were Asian Americans increased from 3.4 percent in 1980 to a high of 22.5 percent in 2014, or by almost seven times, in the period the case addressed. For the class of 2027, 57,000 students applied, Harvard accepted 3.4 percent, and 84 percent accepted the place offered them. Asian Americans make up 29.9 percent of accepted students, an increase of almost nine times. 

Richard D. Kahlenberg ’85, J.D. ’89, was a key witness for SFFA in its lawsuit against Harvard. For a generation, through his writing (like his 1996 book The Remedy: Class, Race, and Affirmative Action) and policy work, he has been a leading advocate for class-based affirmative action in college and university admissions. “Harvard, to its enduring credit, has made great strides on racial diversity,” he wrote in this magazine in 2017. “But its economic profile looks nothing like America’s. Despite concerted efforts to boost financial aid in recent years, enormous gaps remain. Looking at individuals born between 1981 and 1991, Raj Chetty of Stanford” (Ackman professor of economics, Chetty,’00, Ph.D. ’03, returned to the Harvard faculty in 2018) “and his colleagues found that Harvard students from the most affluent 10 percent of the population outnumbered those from the bottom 90 percent. Indeed, by income, about as many Harvard students came from the top 1 percent as from the bottom 60 percent.” 

Kahlenberg went on “that, holding academic ability constant, upper-middle class whites were three times more likely than low-income whites to be admitted to selective private colleges.” Chetty and the economist John Friedman, ’02, Ph.D. ’07, found in a study that 58 percent of Harvard students from the bottom income quintile made it to the top quintile by their early-thirties, but Harvard, like other Ivy-Plus colleges (including the University of Chicago, Duke, MIT, and Stanford), has contributed little to substantial upward social mobility because a tiny share of its students have come from the bottom quintile.

In a report for SFFA included in evidence, Kahlenberg said that “there is extensive empirical evidence and academic research documenting the myriad (and innovative) ways in which colleges and universities such as Harvard can use race-neutral alternatives to produce the educational benefits of diversity” and that “there are race-neutral alternatives available that could provide Harvard with the educational benefits of diversity without the use of racial preferences”: more extensive recruitment of high-achieving, low-income students; targeting geographic clusters with higher percentages of those students; increasing financial aid; and others. 

Harvard unequivocally disagreed, relying on the Committee to Study Race Neutral Alternatives in Harvard College Admissions, chaired by Finley professor of engineering and applied sciences Michael D. Smith, then dean of the Faculty of Arts and Sciences. In 2018, the committee found that, as Judge Burroughs wrote, “no workable race-neutral admissions practices could, at that time, promote Harvard’s diversity-related educational objectives while also maintaining the standards of excellence that Harvard seeks in its student body through its whole-person, race-conscious admissions program.”

Burroughs went on, “At least 10 percent of Harvard’s admitted class, including more than one-third of the admitted Latinos and more than half of the admitted African Americans, would most likely not be admitted in the absence of Harvard’s race-conscious admissions process. In the absence of any other adjustments to Harvard’s admissions policy, eliminating consideration of race would cause the African American representation at Harvard to decline from approximately 14 percent to 6 percent of the student population and Latino representation to decline from 14 percent to 9 percent. Over the course of four years, the number of African American and Latino students at Harvard would fall by nearly 1,000 students.”

In The New Yorker, Watson professor of law Jeannie Suk Gersen, J.D. ’02, recently identified as “the next big question about admissions” whether the Supreme Court will allow “race-neutral measures—for example, deemphasizing test scores, or boosting applicants from poorly funded high schools—that are designed to produce racial diversity.” In The New York Times, the columnist David Brooks raised an equally big question, which frontally challenged self-satisfaction at selective colleges and universities: whether this is the moment “to reimagine the college admissions process itself, which has morphed into one of the truly destructive institutions in American society.”

He went on, “It’s ridiculous that we’ve built a system that overvalues the sort of technocratic skills these universities cultivate and undervalues the social and moral skills that any healthy society should value more.” And: “It’s sad that we’ve spent decades trying to build a more representative leadership class, but we’ve ended up with an educated elite that doesn’t know much about the rest of America and doesn’t seem notably more competent than the elites that preceded it.”

As a result of the Supreme Court’s ruling in the Harvard and UNC cases, Brooks regards the case for Kahlenberg’s class-based affirmative action as “overwhelming,” ending race-based admissions and favoring applicants from “poor families and disadvantaged neighborhoods” even though, because whites greatly outnumber blacks, a race-blind, class-based program would greatly favor whites. Kahlenberg also proposed excluding preferences for children of university faculty members and staff; for children of alumni, or legacies; and applicants on the “interest list” of the Harvard dean or director of admissions (often children of major donors). Along with recruited athletes, these applicants made up only about 5 percent of the 150,000 applicants considered in the Harvard case, but about 30 percent of applicants admitted—at a rate of 43.6 percent, compared to a rate of 5.5 percent for the other 70 percent of applicants admitted. (The overall admissions rate was 5.3 percent.) Those numbers about special group members are among the most provocative from the case. Collectively, they are largely white and from advantaged backgrounds. 

The decision in the case will likely prompt significant changes in admissions practices at Harvard, UNC, and elsewhere. Stirring fresh thinking about the concept of equality and the reality of inequality in America, it also provides a clear-cut reason for fresh thinking about the public good—about class as well as race in college and university admissions, because they are ever more so gateways to opportunity in the rest of society.

Contributing editor and journalist Lincoln Caplan ’72, J.D. ’76, a visiting lecturer and senior research scholar at Yale Law School, last wrote for this magazine about the presentation of the Students for Fair Admissions litigation before the Supreme Court in October 2022. 

Read more articles by: Lincoln Caplan

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