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MI Responds: Supreme Court's Ruling Against Affirmative Action in College Admissions

Education, Governance Supreme Court, Education, Higher Ed, Affirmative Action

NEW YORK, NYThis morning the Supreme Court ruled against the use of racial identity in college admissions decisions. Scholars from the Manhattan Institute react:

“Forty-five years and a day after one Supreme Court justice opened the door to race-based college admissions, six justices closed it. The Court has finally recognized that the Constitution prohibits such racial discrimination. It’s unbelievable that it took until 2023 to do so, but sometimes the wheels of justice are slow. Sometimes it takes a while for the high court to coalesce around a position that long ago became startlingly obvious to anyone not steeped in judicial artifice or postmodern identity politics—which includes a majority of every American demographic group.

“But this is only the end of the beginning of the fight for equality in educational opportunity. Higher-education grandees have long interpreted the Court’s cautious approval of the temporary use of race (as one of many factors) as a green light for a permanent diversity-industrial complex. They will not go quickly into the colorblind night of merit-based admissions, but will fight for workarounds to maintain their system of racial spoils. So, there’ll be more litigation, but it’s clear that the Supreme Court has no more constitutional patience for admissions officers’ social engineering or university administrators’ DEI posturing.”

Ilya Shapiro is a senior fellow and director of constitutional studies at the Manhattan Institute and author of Canceling Justice: The Illiberal Takeover of Legal Education (forthcoming 2024).

“Next Sunday will mark the 155th anniversary of the Fourteenth Amendment to the Constitution, the second of the three great post-Civil War amendments intended to free the slaves and ensure their civil and voting rights. Unfortunately, the Supreme Court soon gutted the civil and voting rights amendments, ushering in decades of 'Jim Crow' de jure segregation. And then, fortunately, it began to reverse course in the 1950s, restoring the initial promise to prevent government from discriminating on the basis of race.

“Higher education admissions represented the last remnant of the earlier racial caste regime, buttressed by a 'diversity' rationale so flimsy that none of the three dissenting justices in today’s decision even bring themselves to defend it. Like the Southern Democrats of yore, universities will not casually accept the Court’s holding today, and we can expect more litigation for years as education elites try to maintain the status quo. But, at last, the federal judiciary has gotten it right.”

James R. Copland is a senior fellow at the Manhattan Institute and director of legal policy.

“This decision is not a surprise: It effectively bans affirmative action as it's known and practiced today. But the ball is now in the universities' court. As I laid out in a recent report, when colleges' use of race is restricted, they are likely to turn to other methods of hitting their demographic goals; and while these "race-neutral alternatives" have many points in their favor, they also can create academic mismatch between students admitted through preferences and their peers, and in some cases they might cross the line into illegal racial discrimination by proxy.

“There is also a concern that many schools will drop standardized testing (or maintain policies adopted during the pandemic) as part of this process. The law does, in fact, generally ban racial discrimination by U.S. colleges. But there's a difference between stating the law and remaking university admissions – and today's development is only the first step.”

Robert VerBruggen is a fellow at the Manhattan Institute and author of a recent issue brief, After Affirmative Action, Meritocracy?.

“Today the Supreme Court overturned 45 years of court-approved race-based discrimination in higher education admissions. In doing so, Chief Justice John Roberts, writing for the majority, acknowledged what advocates of color-blindness have long known: 'Eliminating racial discrimination means eliminating all of it.' For far too long, colleges and universities have been given a blank check, under Bakke and Grutter, to use race and ethnicity to confer benefits on applicants from certain racial and ethnic groups, while penalizing applicants from others. Asian-American children have borne the brunt of this discrimination.

“With that said, advocates of colorblindness should be aware that the effort to combat race-based discrimination in higher education is only beginning. Colleges and universities will do everything in their power – from eliminating standardized testing requirements to seeking 'race-neutral alternatives' that are, in reality, racial proxies – to continue racially balancing their student body.”

Renu Mukherjee is a Paulson Policy Analyst at the Manhattan Institute and author of the recent report Friends of the Court? Advocacy Groups as Amici in Students for Fair Admissions. Last week she appeared on CNN with Michael Smerconish to discuss the impending case. She has also written about affirmative action for the New York Times: Affirmative Action Is Wrong. There’s a Better Way to Make Campuses Diverse.

For questions or to arrange interviews with Manhattan Institute scholars, please email director of media relations Nora Kenney at

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