Last month the Supreme Court sharply limited the use of race-based affirmative action in higher education. That’s a big deal, but it’s by no means the end of the campaign to eliminate race-conscious policies in education and elsewhere. Indeed, it is only the beginning.

The next – and even more important – stage of the battle concerns the future of all race-conscious policymaking. Is it ever is it permissible for policymakers to pursue goals such as racial diversity, even when they use laws and policies that do not treat individuals differently based on race?

That might sound like a strange question to even ask, much less to answer in the negative. But the first wave of legal cases presenting this challenge has already arrived. They concern the admissions policies of highly selective public high schools, which have sought greater racial diversity through race-neutral means, such as showing preference for poor applicants. The plaintiffs argue that these policies are unconstitutional because, they claim, the purpose remains racially discriminatory.

The implication of these cases for the future of higher education has already begun to attract some public attention – and for good reason. The admissions policies in question are actually the same as those that universities are likely to soon adopt in an attempt to preserve diversity in the post-activist era. Those institutions will almost certainly face similar lawsuits.

But less appreciated is the impact this legal battle could have beyond school admissions. Racial gaps characterize nearly every dimension of American life: life expectancy, maternal mortality, employment rates, income, wealth, environmental exposures, criminal justice involvement, and many others. Politicians routinely seek to close those gaps, even when debating policies that are not directly about race, such as environmental regulations, health care policy, and criminal justice reform.

These legal cases represent a potential revolution that would severely limit efforts to reduce racial disparities or promote integration. If courts were to accept the plaintiffs’ extreme vision of colorblindness, policymakers would be presented with an untenable choice: either not pursue those goals at all – or pursue them only covertly, masking their intentions.

Consider an ongoing constitutional challenge to the admissions policy of Thomas Jefferson High School for Science and Technology, an elite public school in Fairfax County, Va., where a majority of students are Asian-American. (I attended Thomas Jefferson, years ago.) In 2020, the Fairfax County School Board adopted reforms aimed at addressing a longstanding controversy over how few black and Hispanic students were getting in. It eliminated a high-stakes admissions test, focusing more on students. ‘ notes; reserved some slots for students from each high school district in the district; gave extra consideration to poor children and English language learners; and expanded the school’s class size to make more room for applicants from all backgrounds.

As intended, these changes improved black and Hispanic representation. The Asian-American share of the class declined, although Asian-American admissions rates continued to far exceed those of all other groups.

A group called the Coalition for TJ sued, alleging unconstitutional anti-Asian discrimination. Its lawyers did not argue that the school board acted out of anti-Asian sentiment. Rather, they argued that the admissions were “zero-sum”: that efforts to improve black and Hispanic representation necessarily came at some other group’s expense. In changing from one race-neutral policy to another race-neutral policy, the plaintiffs claimed, the school board thought too much about racial outcomes.

Last year, a federal district court struck down the admissions policy as racially discriminatory. But in May, a federal appeals court overturned that decision and supported the policy The case is not over: A petition to the Supreme Court is expected to come soon, and many observers expect the court to take up the case.

If the plaintiffs in the Thomas Jefferson case—or in any of three similar lawsuits their lawyers filed elsewhere—were to win, it would jeopardize a fundamental distinction embedded in Supreme Court doctrine: the difference between the means policy makers use and their ends

When the government (or an entity that receives federal funds, such as a school) treats individuals differently based on race, it must pass a demanding legal test called strict scrutiny. Until last month, the Supreme Court, within limits and reluctantly, held that university-level affirmative action passed this test. Going forward, it will be nearly impossible for affirmative action policies to do so.

But the Supreme Court has long tolerated policies that don’t do involves classifying individuals by race, even if the purpose of the policy is race-conscious. For example, incorporating geographic or socioeconomic preferences into a college’s admissions policy has never been considered constitutionally suspect, even if the college does it in part to promote racial diversity. Traditionally, when the language and implementation of a policy is race-neutral but its goals are race-conscious, courts apply strict scrutiny only when those goals are disfavored—promoting racial inequality rather than combating it.

Eliminating the distinction between means and ends would threaten an enormous range of policies. Consider, to pick just one example, No Child Left Behind, President George W. Bush’s landmark education reform. The educational standards it established drew no racial distinctions. Indeed, uniform standards for all students were the hallmark of the law. But concerns about racial gaps in educational attainment were central to arguments for the lawand the law’s accountability standards required assessments of schools’ progress in closing those gaps (a requirement that remains in the successor legislation in effect today).

Certainly, many people disagree about the merits and effectiveness of this type of policy. There is plenty of room for public debate. But it is – and as I have argued elsewhere, should stay — constitutionally permitted to consider race-related effects when engaging in that debate.

You might take some comfort in knowing that, if the Supreme Court had sided with the plaintiffs in the Thomas Jefferson case or a similar case, many government actors adept at litigation would still be trying to reduce racial disparities—they just wouldn’t say that’s what they are. did They would talk, for example, about the need to address socioeconomic inequality in education—an important concern in itself, of course—while remaining silent on potential impacts on diversity.

But while a lack of candor might insulate future policies from lawsuits, it would do nothing to save the countless existing policies that have already been advocated in terms of racial equality, diversity, or inclusion. In any case, a healthy democracy requires open debate. In a country shaped by its history of racial discrimination and inequality, excluding race from political debate would impoverish our discourse and threaten to delegitimize the political process.

Last month’s affirmative action decision underscored the current Supreme Court’s antipathy to the use of racial classifications. But it gave no clear signal whether the court would extend that antipathy to pro-diversity policies that do not classify by race. Given that discussion of race-neutral alternatives to affirmative action played an outsized role in the oral arguments, it is surprising that the majority opinion says almost nothing about them.

Although this near-silence is difficult to interpret, it may suggest a deliberate choice to put the issue aside for now. The majority opinion does relate to the universities’ diversity-related educational interests as “laudable goals,” which is somewhat encouraging, but it lacks the positive discussion of race-neutral alternatives that some of the court’s past decisions have included.

So we’ll have to wait and see how far the Supreme Court wants to go on colorblindness. In the meantime, the appellate decision in the Thomas Jefferson case remains correctly decided – nothing in the Supreme Court decision changes that. The lower court’s decision points the way for other courts to follow a less radical path — if the Supreme Court doesn’t reverse it in the coming years. But that’s a big if.

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