Opinion | The Supreme Court Turns ‘Equal Protection’ Upside Down


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The problem is that, as a matter of history, it’s not true. The 14th Amendment, ratified in the aftermath of the Civil War, was expressly intended to allow for race-conscious legislation, as Justice Sotomayor noted emphatically on Thursday. The same Congress that passed the amendment enacted several such laws, including the Freedmen’s Bureau Acts, which helped former slaves secure housing, food, jobs and education.

The bureau was an obvious and essential measure to remedy at least some of the harm that slavery inflicted on Black Americans. The first affirmative-action programs, a century later, had the same goal, only then it was necessary to address the decades of state-sanctioned discrimination against Black people that followed Reconstruction, and that continued to impose unique and specific hurdles to their ability to fully join American society. As President Lyndon Johnson said in a 1965 commencement speech at Howard University, “You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘You are free to compete with all the others,’ and still justly believe that you have been completely fair.”

And yet despite the success of affirmative action programs in raising minority enrollment, or more likely because of it, the pushback was immediate. Allan Bakke, a white man rejected by the medical school at the University of California, Davis, said he was the victim of racial discrimination and filed a lawsuit. In a complicated split opinion in the 1978 Bakke case, the Supreme Court allowed race to be considered in college admissions, but only for the purpose of increasing diversity on campus, not as a way to alleviate the long-term effects of discrimination.

The focus on diversity was an orchestrated compromise meant to win over the court’s key swing justice, Lewis Powell. It worked, and yet at the same time it set the stage for affirmative action’s ultimate demise. By limiting it to a hard-to-define concept like diversity, the court opened the door to endless challenges. Some justices have asked, for example, why certain types of diversity mattered more than others. Why only racial diversity and not religious or political diversity?

But diversity — whether on campus, in business, or in government and society at large — remains a vital goal for any institution, and it will now be more difficult to achieve. The word is not a “trendy slogan,” as Justice Jackson wrote in her dissent. Diversifying medical schools by opening up the profession to Black physicians can save lives, she notes. Black infants, for example, are more likely to survive under the care of a Black doctor. Diversity also expands economic benefits and social understanding. A diverse student body, she wrote, means that “students of every race will come to have a greater appreciation and understanding of civic virtue, democratic values, and our country’s commitment to equality.”


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