Posted on July 2, 2023

Ending Affirmative Action May Be Just the Beginning

Aziz Huq, Politico, June 29, 2023

It is easy to think of the Supreme Court’s decision invalidating Harvard and UNC-Chapel Hill’s affirmative action programs as the end of a long road.

A court with a Republican-appointed majority has been chipping away at the legality of using race to allocate state benefits since the Reagan administration. And a young lawyer in Reagan’s White House by the name of John Roberts candidly condemned state affirmative action measures in blunt terms as “highly objectionable.” Now, after Roberts’ opinion Thursday, “objectionable” has become “unconstitutional” thanks simply to the changing composition of the court.

Even if this week’s decision is the final flourish of a conservative legal project that has been in the works since the 1980s, it may also signal the opening of a new chapter in the history of American struggles over race. A conservative majority of the Supreme Court could well build on this ruling to undermine further efforts by the government and firms to identify and address harms that fall distinctively on racial and ethnic minorities.

There are two important ways in which this week’s decision may be the beginning, and not merely the closing of a chapter, for the court. The first would move the law in a meaningfully more conservative direction. The second, if fully realized, would have destabilizing legal and political consequences on par, or greater, than last year’s decision to throw out Roe v. Wade.

The first, and the most likely, “next shoe to drop” after this week’s ruling is a decision invalidating what are called “disparate impact” rules. {snip}

But conservative justices have had disparate impact in their sights for more than a decade now: This week’s more categorical ruling against race-based college admissions adds a powerful new weapon to their repertoire. For it is impossible to talk of “racially disparate impact” without talking of … race.

There are important disparate impact provisions in both state and federal law: Just this March, the Housing and Urban Development Department reinstated a disparate impact housing rule that had been withdrawn by the Trump administration. The main federal employment statute includes language prohibiting disparate impacts, although there is some debate as to how effective it is. Illinois and California also have broad disparate impact prohibitions in their laws.


{snip} But the second potential “next shoe” might have even more far-reaching and disruptive consequences.

Consider a case that has been winding its way through the federal courts in Virginia concerning the admissions processes for the elite Thomas Jefferson High School for Science and Technology in Fairfax County. One of the claims by the group suing the county school board is that the public school engaged in “impermissible racial balancing” by aiming to create an integrated class even without using an explicitly race conscious rule. On this theory, a government action could be challenged not because it mentioned race; it could be challenged because it was intended to mitigate a harm experienced by a specific racial group.


Read broadly, a ruling that effectively says “no racial justice” would have sweeping consequences. It could cast into doubt many state and federal statutes enacted in part out of concern for the burdens that fall more heavily on minority groups. Just one example is the state laws that establish protections for minority voters; it’s not hard to imagine a court frequently hostile to minority voters viewing these measures with a gimlet eye.


The affirmative action decision, in this way, may open the gate to a new kind of political warfare — one that soon could easily dominate state and national agendas.