Today, October 31, the Supreme Court will finally hear arguments challenging race-based admission practices by Harvard and the University of North Carolina (UNC). The Students for Fair Admission, a non-profit group that brought both cases, argues racial categorization is unconstitutional under the 14th Amendment and illegal under Title VI of the Civil Rights Act, provisions that guarantee equal treatment on the basis of race in state universities (14th Amendment) and universities that accept federal funding (Title VI). 

The Supreme Court should take the opportunity to rethink its prior decisions and rule that racial discrimination by universities seeking to climb U.S. News rankings is unlawful and responsible for wide-ranging harm to our nation, including to minorities who were supposed to benefit. 

There’s little question these universities, and others like them, discriminate against white and Asian applicants on the basis of race. At Harvard, for example, black students in the third-highest academic decile have a 6 times greater chance than whites of being admitted, and an almost 9 times greater chance than Asians. The statistics at UNC are similar. A white, out-of-state male with a 10% chance of admission would have a 98% chance if UNC treated him as black. These aren’t boosts for poor, underprivileged applicants—UNC specifically rejected affirmative action for low-income applicants because most low-income applicants are white.

Harvard and UNC won their cases in the lower courts, thanks largely to a 2003 Supreme Court case that legalized affirmative action, despite the Constitution, despite federal nondiscrimination law, and despite Brown v. Board of Education, which rejected using race as a factor in affording educational opportunities. 

In that 2003 case, Grutter v. Bollinger, the Supreme Court said, on one hand, the Constitution forbids even “benign” racial categorization designed to help minorities. That’s correct. But then, the Court created a carve-out for what it considered a highly necessary and tailored use of race: admission policies at prestigious universities where the school seeks “educational benefits that flow from a diverse student body” and uses race as a “plus” factor, not a quota. 

The Supreme Court’s enormous carve-out has no basis in the Constitution. Can you imagine a university having a white-preference policy, and explaining that it was seeking “educational benefits” from a more homogeneous student body and promising to use whiteness as a “plus” factor? The policy would be struck down immediately, and the administrators would be excommunicated from society. 

The real, though unspoken, basis for the Supreme Court’s continued acceptance of affirmative action is the notion that the universities should be allowed to draw racial lines to remedy horrors of the past. Not horrors committed by Harvard or UNC, but generalized societal discrimination that school administrators believe cause black students to underperform academically in K-12.

A “nice discrimination is okay” policy is unsustainable legally and harmful practically. The Court knows it. For that reason, the Court in 2003 said that remedying generalized societal discrimination is not a lawful basis for drawing racial lines—because it would provide a never-ending basis for racial classifications. But because that was exactly what it blessed, the Court imposed an end date. It promised that race-based affirmative action was just a short-term band-aid while “minority applicants with high grades and test scores” increased. The Court declared, “25 years from now, the use of racial preferences will no longer be necessary.”

In a separate opinion, Justice Clarence Thomas warned that the legalization of well-intentioned “meddling of university administrators” would make things worse, not better, for minorities and for our country. He was right.

Start with race relations. In 2004, 68% of black adults said race relations were good, and now only 33% say so. The number of black adults who said relations between black and white people were “very bad” skyrocketed from 8% in 2004 to 31% today. 

Now take test scores. Despite billions of dollars and far-reaching government programs to reduce inequality, the racial gap in SAT scores hasn’t meaningfully narrowed. In 2002, the average white student’s SAT math score was 106 points higher than the average black student’s; in 2020 the gap remained at 93 points. 

Now look at the explosion of racial classifications, from airlines to professional hockey, to corporate boards. Even the judiciary, where judges wear black robes to remind litigants that judges approach the law neutrally, is affected. Then-candidate Joe Biden promised to put a “black woman” on the Supreme Court to “make sure we in fact get everyone represented.”

“But it has helped the students who got in!” administrators might say. That’s not true—students admitted to schools where they cannot adequately compete choose majors with lower earning potential or drop out entirely, laden with student loans to boot. But even if affirmative action at prestigious universities has helped certain individuals, it’s far from those who needed help. As Justice Thomas opined, a prestigious university accepting a student who otherwise would have gone to a mid-tier school “does nothing for those too poor or uneducated to participate in elite higher education and therefore presents only an illusory solution to the challenges facing our Nation.” He’s right. I’m a former teacher of inner-city black students more likely to drop out than attend college—it’s inexcusable that Harvard can profess it cares about opportunity while doing nothing to solve the cultural crisis affecting poor families across the nation.

Of course, I want to see all students succeed—no matter their race, background, or class. I joined Teach for America for that purpose specifically. And, having attended Harvard Law School, I know my experience was enriched by meeting people from all over this country with all sorts of viewpoints (well, the viewpoints that Harvard approves of). And so, in a sense, I sympathize with Harvard and UNC administrators trying to craft their ideal freshman class. But our nation won’t achieve sweeping student success and more intellectual diversity by permitting federally-funded institutions to racially categorize us from infancy onward. 

The Supreme Court should stop pretending the Constitution and nondiscrimination laws bless race-based affirmative action. These policies have not come close to achieving the outcomes the Supreme Court thought they would.