On Thursday, June 29, the U.S. Supreme Court struck down race-based affirmative action admissions plans at Harvard University and the University of North Carolina. While the Court has previously upheld affirmative action, most prominently 20 years ago when Justice Sandra Day O’Connor wrote the majority opinion for the Grutter decision in the University of Michigan cases, today’s 6-3 ruling that colleges and universities must stop considering race in admissions is representative of a decisive shift to the right in the Court’s makeup. The decision says plainly: “Many universities have for too long wrongly concluded that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned, but the color of their skin. This Nation’s constitutional history does not tolerate that choice.” Here, Professor Ralph Richard Banks, a law school faculty member who directs the Stanford Center for Racial Justice, discusses the ruling, issues the Court did not take into consideration, and how schools might address diversity in light of the Court’s ruling.

What is your initial reaction to the decision?

Frankly, from what I read, there was nothing new in the majority argument. There have been contradictions, instabilities, and vulnerabilities in the doctrine and practice around affirmative action for a long time. The Court has just shifted in how it evaluates those questions. It has applied a much more stringent form of scrutiny in this case than it has in the past.

So, the big takeaway is that the majority opinion was not a surprise. It was expected. The majority’s rationales for striking down affirmative action are in essence the same sort of rationales that have been discussed previously, but never accepted by a majority of the Court. And now there’s a different majority, and a different decision. Some of the issues are the same issues that have been debated from the very beginning, but the assessment of those issues has shifted. One noteworthy change was the extent to which Roberts completely ignored the argument that Justice O’Connor and other justices have made in prior cases of the extent to which affirmative action may serve society and the stake that society has in affirmative action. Roberts discussed affirmative action and diversity wholly with respect to the internal operations of the university.

Can you just talk about the legacy of affirmative action? Was it a success?

Yes. Affirmative action, not only in the higher education space but in the employment space, has helped to create a Black middle and upper middle class. The program has clearly had an effect in terms of making educational opportunities and employment opportunities available to people who might not otherwise have had them. This was especially significant in the early days of affirmative action. Consider the Court’s 1978 decision in Bakke (Regents of the University of California v. Bakke). At that time the African Americans who were trying to gain access to middle-class jobs and higher education were people who grew up in an America that was characterized by Jim Crow, with stark racial segregation and undeniable racial hierarchy; they had not been allowed to gain access to good jobs or to high status schools. So affirmative action was really central to transforming that sort of system and undermining the caste system that had developed in American society and bringing African Americans in particular into the mainstream, the middle class, the upper middle class, and even into elite society. That’s an extraordinary contribution in our struggle against racism and the legacy of slavery.

So, today’s Supreme Court Equal Protections Clause argument and the notion of a color-blind nation wouldn’t have held up to the blatant inequalities of 1970s America?

That’s right. The moral and social calculus has shifted. Because for Bakke the underlying reality was that the Black people who would’ve applied were students who were raised in the Jim Crow South, and my parents were from the Jim Crow South during a time when a lot of the towns didn’t even provide high schools for Black students, or they provided high schools that were markedly inferior to the white schools. And many universities didn’t allow African Americans at the time. So, you had to have some special consideration if you were going to have any representation from these descendants of slaves. At that time, affirmative action was essential, and people recognized that it was essential to do something special, something aggressive and very affirmative to transform society and move away from the caste system that arose in the aftermath of slavery. Today, people don’t have that urgency.

The Grutter decision had a timestamp—an expectation that in 25 years, affirmative action would no longer be necessary. In this decision, the Court said that “Respondents’ admissions programs also lack a ‘logical end point’ as Grutter required.” Can you talk about how society and affirmative action has changed since the Grutter decision and how that might have supported today’s decision?

Let me be clear that I do not believe that affirmative action should have any timestamp. And that Justice O’Connor’s reference in Grutter in 2003 that affirmative action would not be necessary 25 years later was not in any way the holding of that case. It was what lawyers call dicta. Think of it as musing out loud.

That said, today, affirmative action is not targeted to the horribly disadvantaged student, as it was decades ago. In some ways, it is a victim of its successes. We have a class of African Americans who themselves went to Harvard and Stanford and other elite schools, and they want their children to go to these schools. And indeed, their children are going to these schools. Over time, affirmative action has become a program that benefits the children of parents who themselves have done pretty well. This should not surprise us.  Just as elite schools disproportionately serve the children of affluent and well-educated white people, so too do they disproportionately serve the children of affluent and well-educated Black and Latino people.

So, we’re not part of this “up from slavery” era now. Affirmative action is benefiting lots of Black students and other racial minority students who likely encountered special challenges because of that, but many are also coming from families who are fairly advantaged and even affluent. An increasing proportion of students now who benefit from affirmative action are from immigrant families, for example, or international students who come from elsewhere. And this is especially true with Black students. So, the link between race and disadvantage is not nearly as tight now as it was 40 years ago.

So, that’s a cornerstone of the Court’s rationale for overturning affirmative action?

I think that’s the underlying logic that’s powering the decision and public sentiment. There is some recognition not only among the justices, but out in the society that there used to be almost an identity between race and disadvantage. In 1965 or in 1978, if you had a program that was benefiting African Americans, it was almost tantamount to being a program that was benefiting disadvantaged people because the African American people were terribly disadvantaged. They really were. You can call that a stereotype if you want, but that was a reality.

Another rationale for affirmative action is a forward looking one, which is that we need affirmative action on the basis of race because we want to have racially diverse leadership cadre in American society. You don’t want to have Black people or Latinos, or any other identifiable group shut out from opportunities to become United States senators or the president, for example. As I said earlier, that’s a rationale that Justice O’Connor relied on in Grutter, which was a twist on Bakke, in that she focused not simply on the benefits of affirmative action for the university, but the benefits of affirmative action for the society and the stability of the democracy. One might wonder legitimately whether our democracy can sustain itself if it appears to people that certain groups are shut out of leadership positions. And for better or for worse, elite schools like Harvard and Stanford and University of North Carolina are schools that have been pathways to these elite positions—leaders of business, government, the nonprofit sector, and so on. That was a conspicuous omission in the majority opinion, that Roberts didn’t even allude to the question of the benefits of affirmative action for the society.  Thankfully, Justice Jackson in particular did highlight some of those benefits.

The question of how admissions deans can build diverse classes is touched upon in the decision has been a big focus. The decision says, “nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university.”

So, for the Court’s majority, there are these two big questions of what does equality mean? One is that it means colorblindness, which is the Roberts position. The idea there is that you cannot consider race—you have to imagine literally being blind to race, and you can’t treat any individual differently because of race. The other approach, which we might call this a sort of anti-racist approach, is that it’s fine to be open to looking at race as long as you do it to undermine racial hierarchy and diminish racial disparities in society.  But then the question is, how hard or how aggressive are they going to be with colorblindness? You could say that colorblindness means that you can’t have a formal program of preferring people on the basis of race or at an extreme colorblindness it could mean that you can’t even know the race of the applicants or you can’t talk about anything related to racial issues. And so there are all these different gradations of colorblindness.  So, when the Court says it’s fine for students to write about their race in their essays and universities can read it—that race doesn’t have to be redacted—that’s answering the question of how far colorblindness goes. For now.

Do you expect the discussion of race in student essays could be challenged?

Almost certainly. This case may seem like an end to debate about a contentious policy, but in fact it is the beginning of a different phase of the conflict. There will no doubt be much litigation probing the question of precisely what it means for policies and practices to not take account of race.

Do you think this decision might have other unanticipated consequences, such as throwing into question the role of DEI officers on campuses?

Yes. DEI is on the chopping block. It was already being scrutinized as a policy matter. A lot of universities have started vigorous programs, and now some states are prohibiting D E I. This case is about treating individual applicants differently on the basis of race. But if you really want to be aggressive with your view of colorblindness, you might say, well, you can’t even treat racial issues differently from non-racial issues. If you’re going to push colorblindness that far, it’s hard to see how programs that single out race are now on a stable footing. And other university policies and programs could also be vulnerable, even if they don’t treat individuals differently on account of race, they could be on the chopping block because they treat racial issues differently from non-racial issues.

So, we’re in for a whole new world of litigation. 

Yes. You could imagine that the Court could see some programs almost as a pretext for doing covertly the same thing that they are prohibiting in this ruling—overtly treating individuals differently on the basis of race.

In the decision, the majority said that, “Respondents’ race-based admissions systems also fail to comply with the Equal Protection Clause’s twin commands that race may never be used as a ‘negative’ and that it may not operate as a stereotype.” Can you talk about that—and that in this case the charge was that not a white but an Asian American student was being disadvantaged?

We talked about the vulnerabilities of affirmative action policy and doctrine. But the aim was positive— the intent, historically, was something most people could support, which is that we want to bring in people who are outsiders and have them be part of the institution and integrate into the mainstream of society. The criticism of that is that okay, even if that’s your intent in practice, when you take slots from one group and when you give advantage to one group, you are creating in practice a disadvantage for another group. And so that’s been the tension. What the plaintiff did in this case was a stroke of brilliance—having racial minority applicants as the plaintiffs. Historically, the plaintiffs were always white applicants. From Bakke to Grutter into the Fisher cases in Texas. But in this case, the plaintiff was Asian-American applicants. That unsettles the deal that we’ve made with ourselves, that this is all about doing a positive thing, not about trying to do anything negative. And that unsettles many people’s support for affirmative action because there is a history of universities excluding groups who they thought would change the character of the institution. The big historical example is that of elite schools excluding Jews. And there is a history of formal discrimination against Asian Americans, not simply arguably limiting their admission to universities, but locking them out of our nation. Really ugly stuff. So, it changes the underlying moral calculus because now it’s not about letting in minorities at the expense of white applicants. It’s that you’re letting in students from minority groups, African American and Latinos, but the people who are bearing the cost of that are the Asian applicants who are themselves minorities, and who have been discriminated against in the past.

Where is public sentiment on this issue?  

Those of us who are supporters of affirmative action sometimes imagine that everyone out there in the society supports it. But that’s actually not true. California is largely a Democratic-controlled state where the majority of the voters are Democratic. But California passed Prop 209 prohibiting affirmative action and then more recently we had a ballot initiative to repeal the prohibition, and we didn’t. So, the majority of California voters, and a majority of voters in other states as well, are actually not in favor of race being considered in the admissions process, as a basis of treating applicants differently. That’s the reality.

How can universities continue to achieve diverse classes?

They can focus on the use of other factors that relate to disadvantage or lack of opportunity or obstacles encountered that may be associated with race, but that are distinct from race, looking for students who live in low-income areas or students who grow up in families where their English is not their first language or students who attend schools that are in high poverty areas or students who are the first generation in their families who attend college. There are all of these characteristics that sometimes people think of as proxies for race, but they are also characteristics that are arguably important on their own. Indeed, it may be more accurate to think of race generally as a proxy for these aspects of disadvantage. The other thing that gets less attention that is also important is that a lot of the selective schools, in particular the private schools in recent years, have relied increasingly on middlemen organizations to get their students. And there are a lot of programs like that. I have in mind non-profits that recruit students and then deliver to the universities, so to speak.

Do you think the combination of the recent Varsity Blues admission scandal and this decision might cause a re-thinking of admissions generally at elite universities, particularly the preference given to big donors and so-called legacy applicants?

I am hoping that the system is reformed. One of the important and interesting aspects of this opinion is the Court and the plaintiff’s focus on the use of affirmative action as having this negative impact on Asian American applicants. But they’re also impacted as much or more by other programs that disproportionately benefit affluent white applicants. And that very important point is not even entering into the conversation in the majority opinion. Legacy programs where schools give a preference to the children of graduates and programs to admit students into athletics, these are a major pathway into elite schools—the private schools in particular, which are smaller. If you talk about schools like Princeton, Amherst, and Brown athletes might be 20 percent or more of the student body. And those students are disproportionately white and from affluent families. Legacy applicants are similarly a substantial proportion of schools like Harvard and they’re disproportionately white. So, it is curious that the plaintiffs are concerned about whether Asian American applicants have access to elite schools, but then they focus only on race-based affirmative action and not at all on the legacy program and the role of athletics and admission.  The cynical me would say that this is another case where we have some social problem or some pain that people are experiencing and they want to finger Black and Latino people as the culprits, the ones who are likely causing the problems when in fact the problem could have been framed completely differently. So that’s a big issue. And it’s never been clear to me why legacy admissions are constitutional. We don’t have a history of challenging legacy admissions in the same way we had this history of challenges of race-based affirmative action, but these programs were instituted precisely to keep the schools white and to keep the Jewish applicants out.  It’s not a pretty history.

This decision closes the door to a legislative remedy, doesn’t it?

The Court had two paths it could have taken in this case. One was that it could have issued a ruling that was statutory. These cases have always turned on both the Equal Protection Clause and Title VI of the 1964 Civil Rights Act. And Title VI is the provision that governs all institutions that receive federal funding. That’s why Harvard was in the case. Because Harvard is governed under Title VI, but not under the Constitution because it’s a private institution. So, the Court could have issued an opinion that said we’re finding that race-based affirmative action violates the federal statute and stopped there.  If it had issued that sort of opinion, then Congress would’ve been able to change the law. Congress can’t change the law to override the constitutional ruling. It could still change Title VI to clarify or assert that it imposes different requirements than the Constitution. That could happen, but I don’t expect it to.

Ralph Richard Banks (BA ’87, MA ’87) is the Jackson Eli Reynolds Professor of Law at Stanford Law School, the co-founder and Faculty Director of the Stanford Center for Racial Justice, and Professor, by courtesy, at the School of Education. A native of Cleveland, Ohio and a graduate of Stanford University and Harvard Law School (JD 1994), Banks has been a member of the Stanford faculty since 1998. He is the author of Is Marriage for White People? How the African American Marriage Decline Affects Everyone.