In the 231 years since its first ruling, the Supreme Court has never sown more confusion than in the 45 years since it first ruled on the subject of race-based decisions in university admissions. On Thursday, the court found Harvard and the University of North Carolina guilty of doing what the court’s earlier rulings have repeatedly given universities muddled semi-permission to do: ignore the 14th Amendment’s guarantee of “equal protection of the laws.” The court did not “end” affirmative action. The court cannot stifle, by minutely policing, academia’s determination to continue administering racial preferences (and hence, necessarily, racial disadvantages). Thursday’s decision usefully affirms the principle of racial neutrality at a moment when public- and private-sector institutions are rejecting it. But universities will respond to the court’s ruling by adopting more surreptitious and disguised preferences. This will deepen public cynicism about higher education, as its prestige leaks away. Consider the path the court stumbled along to reach Thursday’s constitutionally correct ruling, one that reveals how unhelpful its prior rulings have been. In Bakke (1978), a fractured court held that in order to survive judicial “strict scrutiny,” racial preferences in admissions must be narrowly tailored to achieve only one permissible “compelling” interest: student body “diversity.”

Until Thursday, the court had flinched from saying that such diversity — as defined by universities, which simply need to assert its benefits — is so important that it justifies ignoring the 14th Amendment. Justice Lewis F. Powell Jr.’s controlling opinion in Bakke said a university should be free “to make its own judgments as to education,” including “the selection of its student body.” The court thereby made a high principle of deferring to academia’s judgment about the necessity for racialist diversity policies.

This announced judicial deference effectively endorsed racialist policies. And it effectively nullified strict scrutiny. Bakke and subsequent cases actually made higher education the only U.S. enterprise immune from strict scrutiny of racialist policies. There is a paucity of empirical evidence establishing what kind of diversity produces what kind of improved educational outcomes. Under the regnant ideology in academia, evidence is considered unnecessary.

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