The Supreme Court’s decision in Students for Fair Admissions v. Harvard and North Carolina universally has been condemned by the mainstream media as well as CNN, MSNBC and even the Salt Lake Tribune. Understandably, the Black community has furiously decried the decision and for good reason. Ever since the decision of University of California v. Bakke in 1978, affirmative action has been the cultural engineer to design a diverse college population by “weighting race” in the admissions process. Now, the fear is, this tool is lost forever.

The 40-page decision, written by Chief Justice Roberts, “held” (the key point decided) that “racial preferences,” as used within the context of Harvard’s and UNC’s selection processes, violates the Equal Protection Clause of the 14th Amendment.

“Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. Both programs … unavoidably employ race in a negative manner, involve racial stereotyping and lack meaningful end points. … Eliminating racial discrimination means eliminating all of it.”

Roberts signaled his personal view 20 years ago in a concurring opinion when he wrote: “the best way to stop discriminating based on race is to stop discriminating based on race.”

The progressive left, including three Supreme Court justices, marshaled multiple arguments against the decision: “Does the court not understand the racist history of the U.S.? … How can this court brush aside 35 years of affirmative action? … Harvard and UNC have a legitimate educational goal of ensuring diversity within their college population. … Race qua race (race for the sake of race) is itself an indispensable ingredient of diversity. … This is another right-wing decision by an illegitimate court.”

Lost within the debate, as was the case in Dodds v. Jackson Women’s Health Organization (the decision overruling Roe v. Wade) is scant analysis of whether the decision legally is correct irrespective of the cultural outrage it caused. Fifty-nine years ago, the 1964 Civil Rights Act made it illegal to discriminate on the basis of race, religion, national origin, color or sex. In any employment case brought thereafter, under this statute, the sole question is whether the plaintiff has been discriminated against based on one of the prohibited factors. The Equal Protection Clause has long been the constitutional go-to amendment used to strike down actions and practices that deny an individual or a group equal treatment. This clause, coupled with the Civil Rights Act, makes it almost impossible, constitutionally, to maintain a practice that uses race to advance one class of applicants at the expense of another class. Harvard admitted the practice of grading “down” personality traits of Asians (“un-likeability”) as a way to boost the lower academic scores of Blacks and Hispanics.

Even if correct, the court’s analysis quickly is drowned out by cultural arguments supporting affirmative action: historical discrimination by white America … the innate value of diversity … the continuing need for affirmative action to provide opportunities to less-advantaged students of color … the need to equalize the privileges that white and Asian families enjoy — greater wealth, ability to hire tutors, private schooling for their children. As compelling as these cultural arguments are, they fail legally to address the constitutional issue: Do admission preferences based on race violate the 14th Amendment? Ironically, the progressive left and the Black community for decades have relied upon the identical rationale the Supreme Court used in Students for Fair Admissions — i.e., the 14th Amendment and the Civil Rights Act prohibit discriminatory practices and unequal treatment by white America against people of color.

The cultural dichotomy presented by Students for Fair Admissions was on full display two weeks ago in a picture printed in the Lost Angeles Times. Two groups of Harvard students, one Asian and one Black, were confronting each other with multiple placards. One read “No discrimination based on race.” The other one read “Affirmative action provides opportunities.”

A second argument made by those attacking the court’s decision is that “it is unfair to eliminate racial preferences, which ensure a more diverse scholastic environment, and yet continue to allow Harvard, particularly, to give priority to legacy applicants.” This very appealing assertion is buttressed by statistical evidence. While “racial preferencing” tips the scale only by 2%-4%, legacies at Harvard exceed 35%, possibly as high as 70%, depending on the study selected. The jurisdictional problem, of course, is that the legacy argument was not before the court to decide. (It may be soon. Two civil rights groups have just initiated lawsuits challenging this practice. More litigation will follow.)

Harvard and UNC admitted that they could foresee no end to using race to achieve diversity on campus. Justice Sotomayor went further. She advanced the view (accepted by all who insist that institutional racism is rampant in America) that systemic inequities may always require discrimination based on race to eliminate racial discrimination. This is the position with which Justice Roberts took issue by observing that “the programs … lack meaningful ends.” Affirmative action, by its nature, advances applicants of color over white or Asian applicants who otherwise would have been admitted. Historically, Harvard has gone out of its way to ensure that the percentages of African Americans and Hispanics admitted remained almost identical year after year regardless of academic merit.

Justice Roberts did suggest that universities could consider an applicant’s discussion of how race had affected his or her life through discrimination, inspiration or otherwise so long as the applicant is considered (by the university) as an individual, and not because of race. It is difficult to understand exactly what this statement means, and how an applicant of color can take advantage of it. As reported in a lengthy article in the LA Times last month, minorities are confused about how to structure their application package without offending the language and flavor of Students for Fair Admissions.

Any solution to reconcile the 14th Amendment with affirmative action immediately is redundant; so extensive are the writings on this subject. Nor is it enough simply to say that Students for Fair Admissions was decided correctly, or that the 14th Amendment clearly bars racial discrimination. To communities of color, affirmative action is the path to opportunities at the highest academic and employment levels. The path now looks blocked.

Dennis Gladwell is a former adjunct professor of law who lives in Ogden.

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