The end of affirmative action, one year later

One year ago, the Supreme Court banned universities from using race in admissions and sparked a national reexamination of the use of race in many contexts. Surveying America one year later reveals a nation teetering between race neutrality and racial preferences.

For those who hope for a rebirth of race neutrality, there is both good news and bad news.

First, the good. The public supports race neutrality. The obsession with using quotas and discrimination to equalize outcomes across racial groups — often referred to by the Left as “equity” — grips only a small and extreme group. Most people know, admire, trust, and love people of all sorts of racial makeups and understand intuitively that skin color and ethnicity don’t determine character.

People also know that fewer and fewer of their neighbors fit into the tidy race boxes that the government and institutions such as Harvard try to cram them into. More and more people are multiracial, in interracial marriages, and defy reductionist stereotypes about how people of a certain race think and act.

The Supreme Court acknowledged this in what is probably the most important part of its opinion in last year’s Harvard case. America’s race boxes, it said, are “imprecise,” “opaque,” “overbroad,” “arbitrary,” and “underinclusive.” Those boxes have no “meaningful connection” to true diversity and no meaningful connection to any other public policy goal . They are pure arbitrariness .

Lower courts have applied that observation to race preferences in other contexts and struck them down . If there is one thing that the law will not tolerate, it is arbitrariness.

And now, the bad news. Although most people support race neutrality, the small and extreme group that doesn’t wields a lot of power. They teach at prestigious universities, run large companies, and staff government agencies. They are well-positioned to wield power and are rarely deterred from doing so.

Schools have figured out all sorts of clever ways to get around the Supreme Court’s Harvard decision, such as using proxies for race, and the court unfortunately refused to stop them .

Meanwhile, the Biden administration, staffed to the gills with members of this zealous little group, has made race preferences one of its highest priorities. “It has to be the business of the whole of government,” the president said . Anywhere his arm can reach, he imposes racial preferences .

Congress has given him many of the tools he needs to do it . Most Democrats support Biden’s racial preferences, and most Republicans only pay lip service to opposing them. Time after time, congressional Republicans allow their colleagues to slip racial preferences into bills on other things . They have made no serious efforts at reform (although some state Republicans have ).

Still, there is cause to be hopeful. There is no good argument left that racial preferences are constitutional . True, every judicial victory is a rearguard action, and true, there are not enough people fighting against racial preferences in court. But victories are coming surer than ever.

What’s more, we’ve discovered one force strong enough to deter the zealots: money. Those who left the nurturing environments of the Ivy League and resolved to change the world from the boardrooms of the Fortune 500 cannot ignore the monetary costs of their ideology. Businesses have begun to cancel unlawful race-based programs and to lay off some of the zealots who staff their profitless diversity, equity, and inclusion departments.

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Of course, the zealots who work in the government or in universities — those who play with other people's money — are not deterred in this way. But state and federal law enforcement might deter them. There’s no shortage of proposals at hand .

In sum, the Harvard case has revived the race-neutral ideal, but whether it lasts will depend on whether America embraces it. That choice cannot be made by a court but only by people and the institutions that teach and govern them.

GianCarlo Canaparo is a senior legal fellow at the Heritage Foundation’s Meese Center for Legal and Judicial Studies.