Affirmative action programs work. The U.S. Supreme Court is about to end them anyway

The Supreme Court is expected to hear two cases next week concerning the future of affirmative action in higher education. There is widespread fear that the justices will overrule precedent and thereby dramatically lessen diversity in schools across the country.

One case, Students for Fair Admissions v. University of North Carolina, deals with whether affirmative action violates the equal protection clause of the 14th Amendment; the other, Students for Fair Admissions v. Harvard College, revolves around Title VI of the 1964 Civil Rights Act, which prohibits recipients of federal funds from discriminating on the basis of race. The Supreme Court has ruled that the standards under Title VI are the same as those under equal protection.

For over 40 years, the court has repeatedly held that universities have a compelling interest in diverse student bodies and may use race as a factor in admissions. In 1978, in Regents of the University of California v. Bakke, five justices agreed on the importance of affirmative action to achieve diverse admissions.

Twenty-five years later, in Grutter v. Bollinger, the court upheld a University of Michigan Law School affirmative action program and explained the vital importance of a diverse student body for the education of all students, reaffirming the constitutionality of using race as a factor in admissions. In 2016, in Fisher v. University of Texas, the court upheld an affirmative action program for undergraduate admissions.

But the composition of the court has changed significantly since 2016. Two justices who were in the majority in Fisher — Anthony Kennedy and Ruth Bader Ginsburg — have been succeeded by more conservative justices, while the three dissenting justices in that case — John Roberts, Clarence Thomas and Samuel Alito — remain.

Affirmative action, like abortion, has long been a target of conservatives. And as the court demonstrated in Dobbs v. Jackson Women’s Health Organization in June, the conservative justices will not hesitate to overrule precedent. Unlike in Dobbs, Roberts is likely to join the conservative majority in ending affirmative action, which he has vehemently opposed.

The impact of eliminating affirmative action is revealed by California’s experience after Proposition 209 was adopted in 1996, ending the policy for the state’s public entities. The number of Black freshmen enrolled at UCLA fell by nearly half the year after Proposition 209 took effect. It was not until 2015, almost 20 years later, that the number of Black freshmen at UCLA returned to the level before its enactment.

After the University of Texas adopted its affirmative action program, there was a significant increase in applications from minority students, a 20% increase in Black students and a 15% increase in Latino students.

The long history of racial discrimination in America and current inequalities in educational opportunity make affirmative action essential. Affirmative action works.

Simultaneously eliminating affirmative action at public and private schools is sure to have a devastating effect on the admission of students of color across the country for many years. This will have a detrimental effect on the education of all students.

There is overwhelming evidence that the Congress that adopted the 14th Amendment in 1868 did not believe government had to be colorblind. Yet this history is never mentioned in the opinions of the originalist justices who oppose affirmative action. Changing constitutional law, on affirmative action as well as abortion, is their goal.