In one form or another, elite colleges have used affirmative action since 1965 to socially re-engineer the racial mix of their student bodies. Since first upheld in Bakke in 1978, it skirted a fine line under the Equal Protection Clause of the Fourteenth Amendment. At no time did the Court hold that discrimination on the basis of race was constitutional. At no time did the Court hold that discrimination on the basis of race was permissible to remedy past discrimination in college admissions.

The closest the Court came was to approve the use of race as a “plus” factor among fully qualified applicants to achieve what the Court held to be a constitutionally acceptable pedagogical goal, a diverse student body. When the Court affirmed this in the 5-4 decision of Grutter v. Bollinger in 2003, Justice Sandra Day O’Connor, in her majority opinion, raised two difficult questions. Will the need to consider race, a stop-gap measure to achieve diversity, ever come to a conclusion? What is the ultimate goal, as in what would constitute a sufficiently diverse body and what would it look like?

At the beginning, in Bakke, it might have been taken for granted that some consideration of race was necessary to achieve diversity that no one doubted was in need of fixing. But by Gutter, 25 years later, the time has come to ask what was the goal and when would it be accomplished. Twenty years have since passed without any answer to the questions.

As David French notes, both Harvard and University of North Carolina did themselves no favors by overtly discriminating against Asian students and then lying about it,

To understand why Harvard lost — and why race-based affirmative action in public colleges and federally funded private schools is now unlawful — it’s necessary to understand two key facts about the case. First, the evidence is overwhelming that Harvard actively discriminated against Asian applicants. As Chief Justice John Roberts notes in his majority opinion, a Black student in the fourth-lowest academic decile had a higher chance of admission to Harvard than an Asian student in the top decile.

The argument for affirmative action takes on a very different complexion when you frame it as black students against white, than when the facts were about discrimination against Asian students. In order to open seats for black students, Harvard’s “holistic” admissions process dinged Asian students for being unlikable and undesirable. As was raised at oral argument, admissions were a zero-sum game such that giving a “plus” to black students was to give a “minus” to Asians because there were too many, far too qualified, who would have used up the seats for “marginalized” students.

Except for the fact that Asians, too, had suffered severe historic discrimination. But too many Asian students had somehow overcome the legacy of discrimination and, as forcefully argued by Justice Ketanji Brown Jackson in dissent, the Equal Protection Clause were there to remedy discrimination against black students, with no mention of whether Asians deserve equal protection as well.

The majority opinion by Chief Justice John Roberts was relatively straightforward, that the Equal Protection Clause prohibits discrimination on the basis of race.

The entire point of the Equal Protection Clause is that treating someone differently because of their skin color is not like treating them differently because they are from a city or from a suburb, or because they play the violin poorly or well. “One of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities.” But when a university admits students “on the basis of race, it engages in the offensive and demeaning assumption that [students] of a particular race, because of their race, think alike … at the very least alike in the sense of being different from nonminority students. In doing so, the university furthers “stereotypes that treat individuals as the product of their race, evaluating their thoughts and efforts—their very worth as citizens—according to a criterion barred to the Government by history and the Constitution”

But these cases were about procedures used by Harvard and UNC, “opaque” processes with neither cognizable criteria nor discernible goals, even if the putative beneficiaries of racial discrimination were of the preferred race.

Most troubling of all is what the dissent must make these omissions to defend: a judiciary that picks winners and losers based on the color of their skin. While the dissent would certainly not permit university programs that discriminated against black and Latino applicants, it is perfectly willing to let the programs here continue. In its view, this Court is supposed to tell state actors when they have picked the right races to benefit.

The dissents by Justice Sotomayor, Kagan and Jackson, argued that the “gulfs” of racism that persist in America demonstrate that this never was, and is not, a colorblind society, and that the Fourteenth Amendment was intended to provide race conscious remedies to enable black former slaves to achieve equality. As this has never, and may never, be accomplished, the remedial use of racially discriminatory remedies is not only permitted by the Equal Protection Clause, but required to address the ongoing legacy of racism. From Justice Jackson:

The Court has come to rest on the bottom-line conclusion that racial diversity in higher education is only worth potentially preserving insofar as it might be needed to prepare Black Americans and other underrepresented minorities for success in the bunker, not the boardroom (a particularly awkward place to land, in light of the history the majority opts to ignore). It would be deeply unfortunate if the Equal Protection Clause actually demanded this perverse, a historical, and counterproductive outcome. To impose this result in that Clause’s name when it requires no such thing, and to thereby obstruct our collective progress toward the full realization of the Clause’s promise, is truly a tragedy for us all.

From Justice Sotomayor.

Notwithstanding this Court’s actions, however, society’s progress toward equality cannot be permanently halted. Diversity is now a fundamental American value, housed in our varied and multicultural American community that only continues to grow. The pursuit of racial diversity will go on. Although the Court has stripped out almost all uses of race in college admissions, universities can and should continue to use all available tools to meet society’s needs for diversity in education. Despite the Court’s unjustified exercise of power, the opinion today will serve only to highlight the Court’s own impotence in the face of an America whose cries for equality resound.

Despite these catastrophic predictions, CJ Roberts left open an opportunity to colleges to consider race, even while saying universities could not circumvent the holding by adopting a proxy for race to do what it could not do directly.

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. But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today.

Will this decision change everything or nothing? Many of the elite universities involved have responded to the ruling by saying the words that they will abide the law while also saying that they will continue to do what they have been doing and what’s the Supreme Court going to do to stop them?