The subject of what goes under the shibboleth of “affirmative action” is both close to my heart and one about which I have frequently written, usually drawing on Andrew Kull’s legal history The Color-Blind Constitution. Published by Harvard University Press in 1998, it remains a terrific book. If Kull updated it to take cases of the past 25 years into account, he would have a story with a somewhat happier ending. One cannot miss Kull’s admiration for those who have sought to enforce “the color-blind Constitution” in lawsuits going back to 1850 and the doublethink that has defeated it.
It is a subject shrouded in doublethink. Doublethink permeated the defense of the affirmative action regimes before the Court in the Harvard and UNC cases decided today. The Court held the regimes in place in these universities and others like them throughout the land to be illegal under Title VI and unconstitutional under the equal protection clause of the Constitution’s Fourteenth Amendment.
The Court’s 6-3 decision is accessible here. Chief Justice Roberts wrote the strong opinion of the Court, with separate concurrences by Justices Thomas, Gorsuch, and Kavanaugh. All these opinions rout the dissents by Justices Sotomayor and Jackson (in which Justice Kagan joined).
The time has come today to place “affirmative action” in the course of ultimate extinction. Vindicating the claims of color-blindness in higher education, the Court’s decision will run up against a wall of massive resistance among those who are responsible for the regime of racial discrimination. Having found its way in these two cases today, however, the Court has finally placed the law on the right side. Disparate treatment on the basis of race is wrong. Racial discrimination is wrong. Today is a great day for the United States.
