The Case: News

Updates and voices on racial preferences in admissions, affirmative action, and the case.

For Background and Materials, See The Case: Key Documents and Background

The Decision

HELD: Harvard’s and UNC’s admissions programs violate the Equal Protection Clause of the Fourteenth Amendment.

Read Opinion

“…The Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points. We have never permitted admissions programs to work in that way, and we will not do so today.

At the same time, as all parties agree, nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise…

[However], universities may not simply establish through application essays or other means the regime we hold unlawful today… In other words, the student must be treated based on his or her experiences as an individual not on the basis of race.

Many universities have for too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin.

Our constitutional history does not tolerate that choice.”

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Supreme Court Roundtable with FAIR Director Bari Weiss, HLS’s Jeannie Suk Gerson, and more.

Honestly Podcast

A discussion with Jeannie Suk Gersen, Harry Litman and Sarah Isgur on the end of affirmative action and more. In the discussion, HLS professor Jeannie Suk Gerson points out how Roberts’ opinion uses the same rationale as affirmative action supporters. Roberts’ opinion, the “escape value,” says you can “take into account the perspective that someone brings in terms of how race affected their lives and shaped their views or shaped their future... I think that that is the way that often defenders of affirmative action explain why diversity is important.”

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Build Feeder Schools (and Make Yale and Harvard Fund Them)

New York Times

Harvard economics professor Roland Fryer calls on elite institutions such as Harvard and Yale to put their money where their mouths are with affirmative action and create real, systemic change— “Instead of making the admissions process shallow, elite colleges should deepen the applicant pool. The simplest, most direct way to do that is for these schools to found and fund schools that educate disadvantaged students.”

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On Race and Academia

New York Times

FAIR Advisor John McWhorter assesses the impact of affirmative action from firsthand experience. “As an academic who is also Black, I have seen up close, over decades, what it means to take race into account…. that it is somehow ungracious to expect as much of Black students — and future teachers — as we do of others.” Assuming efforts are made “to assist the truly disadvantaged,” such as taking into account socioeconomics, McWhorter believes the SCOTUS decision was correct.

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Why the Champions of Affirmative Action Had to Leave Asians Behind

New Yorker

An excellent piece by Jay Caspian Kang who writes candidly about affirmative action—”The original concept in pursuit of diversity was vital and righteous. The way it was practiced was hard to defend.” In reviewing the dissent by Jackson and Sotomayor, he argues, “These opinions betray the corruption of affirmative action’s original righteous, reparative promise, and the way in which a program that was designed for a racially binary America never got meaningfully updated for today’s multiracial democracy.”

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To Help Black Students, Focus on Early Childhood, not College Admissions

Glenn Loury Substack

Guest essay writer Robert Cherry argues “just how mistaken the liberal position is and what we can gain by shifting away from it.” Among other factors, Cherry points to early years education as key. “Only by increasing family intervention programs that will improve the performance of young black children can we substantially close the race gap at the most selective colleges without sacrificing merit.”

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Unfinished Business

Crimson

Harvard professor Harry Lewis, former Dean of Harvard College and Council on Academic Freedom at Harvard co-president, identifies a diversity challenge: “How to provide a quality education [at Harvard] to students whose preparations differ greatly in quality…That is where the real work needs to be done.” FAIR Advisors Coleman Hughes, Glenn Loury (AM 82) and Ian Rowe (MBA 93) identify this same issue, however Lewis looks to Harvard for the “real work” instead of what happens before college. Perhaps his most salient point - one that directly impacts free speech, viewpoint diversity, and intellectual curiosity—is about racial stereotyping.

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Affirmative action’s fatal flaw: Poor black Americans were never going to benefit

Unherd

Ayaan Hirsi Ali separates black Americans into three groups, arguing that the third group, poor black Americans, are not only exploited by the second group (BLM-type activists and those supporting affirmative action), but that “affirmative action on its own could never solve the problems of black Americans born into terrible environments, because its operation came too late.”

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10 Notes on the End of Affirmative Action

Coleman’s Corner (Coleman Hughes’ Substack)

An excellent piece by FAIR Advisor Coleman Hughes on affirmative action, spelling out “as clearly as possible, my reasons for believing that this decision is a net good for American society.” His 10 points end with a solution— “some of the most groundbreaking but neglected work” by Harvard’s very own Roland Fryer. “If one-tenth of the energy directed at preserving ‘Affirmative Action’ were directed at implementing the Fryer protocol…that would constitute, in my view, a serious intervention aimed at attacking the root causes of racial inequality.”

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Held: Harvard’s and UNC’s admissions programs violate the Equal Protection Clause of the Fourteenth Amendment.

Because Harvard’s and UNC’s admissions programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points, those admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. Read the Opinion.

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The Next Battle Over Racial Preferences

City Journal

Wai Wah Chin argues that universities still intend to practice preferential admissions by removing merit-based criteria and using proxies for race, including “socio” factors such as coming from a single parent home or having incarcerated family members. “Legal questions aside,” Chin argues, “the use of sham proxies for race should offend us. It should also alarm us: all these proxies entail the dumbing down of standards and the end of merit.”

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After Affirmative Action Ends

New Yorker

In this piece, Harvard professor Jeannie Suk Gersen opines on the legality of “race-neutral” methods that are designed with the continuing goal of producing diverse student bodies.

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Racial Preferences May End, but the Fight Will Continue

FAIR Advisor John McWhorter, a supporter of socioeconomic considerations in college admissions, counters the argument of historian Richard Rothstein… I often can’t help detecting a quiet sense that black people just aren’t made for the school thing and that a moral society must grade all of us on a curve. I see this less as antiracism than condescension, a mild form of racial prejudice, which is neither a gift nor a compliment.”

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The End of Affirmative Action. For Real This Time.

Atlantic

A conversation about what the case means for the use of race in admissions, especially as a “social good”… “we’ve lost sight of universities as serving this broader good. Instead, we tend to see them narrowly, as vehicles for individual advancement.”

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