The U.S. Supreme Court Gutted Affirmative Action. Are We A More Equitable Society? Can We Be?

The United States Supreme Court launched a direct strike against the institutions that most Americans believe are the gateway to a better life. In Students For Fair Admissions, Inc. v. Harvard College, decided 6/29/2023, the Court ruled that race cannot be a factor in college admissions, without regard to the fact that no institution uses race as the sole or even the dominant factor in admissions. Harvard and the University of North Carolina (the second school challenged in this litigation) only use race as a factor after consideration of academics, extracurricular activities, athletics, school and personal support, and geographic distribution. Despite this fact, the Court declared that the use of race in any way as a factor in admissions violates the 14th Amendment.

The Court paid lip service to diversity as a legitimate goal for institutions of higher education by allowing future applicants to discuss how race may have impacted their formation and value as a candidate for admission. Chief Justice John Roberts writing for the majority stated that universities and colleges could continue to consider the effect of race on life experiences of applicants who write about it in their essays, as long as it did not become a substitute for affirmative action.

This ruling flies in the face of almost 50 years of precedent upholding race as a legitimate factor in the admission process. See, Regents of the University of California v. Bakke, 438 U.S. 265, 1978. Admittedly, the Court has always stated that at some point racial preferences would not be necessary – see Grutter v. Bollinger, 539 U.S. 306 (2003) and Fischer v. University of Texas Austin, 570 U.S. 297 (2013). The inference being that society would self-correct and eventually evaluate everyone based on merit. That day has not arrived.

As proof that American society has not reached educational equity in college admissions, prior to the Court’s ruling in Students for Fair Admissions et. al., nine states eliminated affirmative action in college admissions (As of 2021 Arizona, California, Florida, Idaho, Michigan, Nebraska, New Hampshire, Oklahoma, and Washington banned the use of race as a factor in college admissions). The results show a dramatic drop in the admissions of Black and Hispanic students. The Washington Post examined 30 years of data and found that only Whites and Asians benefited from the exclusion of race in the admissions process across all nine states. Immediately after the ban was implemented in California, the University of California Berkley and UCLA saw a reduction in Black student admissions by greater than 40%. To truly understand the impact of this decision, it is noteworthy that Black students at UCLA represented 7% of the student body in 1998. Immediately after the ban, that number fell to 3.9% and in 2006 there were 96 Black students out of a student body of 5,000 students or 0.0192%. This drop in the Black student population was mirrored in the other eight states. Across all nine states which banned affirmative action only, White and Asian students saw an increase in enrollment.

The effects of historic and systemic racial discrimination are not only evident in education but can also be seen in income gaps and homeownership – both metrics which are directly correlated to educational achievement. Only 40% of Black Americans own homes while 70% of White Americans are homeowners. Likewise, the income gap is stark:


                                  Asians              White            Black           Hispanics

Male                         $81,794          $64,764        $50,187        $47,151

Female                     $63,867           $51,451        $46,543        $39,511


This racial disparity is mirrored in every metric of success. The Supreme Court’s ban on affirmative action in education will further exacerbate these disparities. Equity is impossible when society continues to put barriers in the path to the American Dream. Yet, “effective participation by all members of all racial and ethnic groups in the civil life of our nation is essential if the dream of one nation, indivisible is to be realized.” This, however, is our reality. The challenge before us now is how do we overcome the newest hurdle to inclusion and equity?

The elimination of affirmative action, while a disappointment, was not a surprise. Accordingly, efforts to develop new strategies started before the Supreme Court’s ruling. To that end, universities and colleges have already begun efforts to ensure that their campuses will be diverse. Proposals focusing on class and economic status are being discussed as a way to identify diverse students. Many experts believe that this approach will increase the numbers of Blacks, Hispanics, and poor Whites on college campuses. Challenges to legacy status as a factor in admissions are also being raised. Legacy admissions and recruited athletes constitute many of the admissions in the most selective schools, both public and private. Recruited athletes at the most selective schools tend to be in sports not common to the inner city or rural communities; for example, sports like crew and fencing.

Only time will tell if these and other proposals will be impactful. Ultimately the most effective way to ensure a diverse robust pipeline of students to institutions of higher education, we will have to repair   K-12 public education. As long as public education is underfunded and inadequately resourced, African American and Hispanic students will lack the skills and foundational education to compete. Investing in public education will help achieve diverse student bodies on college campuses and ultimately reduce racial disparities in housing and income that have long plagued this country.

This is a moment of opportunity to revisit the very infrastructure of K-12 public education and to provide all students with what they need to succeed and achieve the American Dream. We will all be better for the investment.


Renee Cardwell Hughes, Senior Advisor

Judge Renee Cardwell Hughes (Ret.) is a highly experienced senior executive, attorney, retired judge, Independent Board member, and Qualified Financial Expert. She has a demonstrated history of leading large organizations with complex management structures and marketplace challenges. Judge Cardwell Hughes is particularly skilled in Strategic Leadership, Nonprofit Organizations, Coaching, Government Relations, Fund Development, Conflict Resolution, effective P&L Management, Board Development, Public Relations, and Crisis Management. She has deep experience with Media Relations across all formats. She is a strong business development professional, with a J.D. from Georgetown University Law School.          

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