The Post-Affirmative Action Era and the Reconfiguration of Equal Protection

In Students for Fair Admissions v. Harvard and its companion case involving the University of North Carolina, the Supreme Court effectively dismantled the use of race-conscious admissions. Writing for the majority, Chief Justice Roberts concluded that such policies violate the Equal Protection Clause because they treat applicants differently based on race, even when intended to foster diversity.

The ruling marks the culmination of decades of narrowing precedent beginning with Bakke (1978), Grutter (2003), and Fisher (2016). The Court’s current position rejects the diversity rationale that once justified limited race-based considerations, declaring that universities must achieve inclusion through race-neutral means.

For California institutions, this framework is familiar. Proposition 209, adopted in 1996, prohibits the consideration of race, sex, or ethnicity in public education. UC San Diego has spent nearly three decades developing alternative pathways: targeted outreach to underrepresented regions, emphasis on socioeconomic background, and partnerships with community colleges. Yet despite these measures, enrollment gaps persist.

The Supreme Court’s decision introduces additional uncertainty. The use of essays, geographic indicators, and adversity scores may now face scrutiny if they function as proxies for race. Universities must demonstrate that their admissions processes are truly neutral and empirically justified. Some legal analysts predict new waves of litigation challenging these indirect factors as disguised affirmative action.

The administrative implications are substantial. Institutions must redesign data tracking, review training, and communication strategies to comply with evolving standards. Meanwhile, the philosophical debate continues: whether a color-blind Constitution promotes or undermines genuine equality.

Justice Sotomayor’s dissent in SFFA v. Harvard highlighted the tension between formal equality and substantive fairness. She warned that ignoring race does not eliminate racial inequality. For universities, the task ahead is to innovate within constraint, developing policies that reflect both constitutional compliance and the enduring educational value of diversity.