The Supreme Court recently heard arguments in another case about affirmative action in college admissions. This time, there’s a good chance these policies are ruled unconstitutional. If you’re wondering how that can possibly be so, you’re not alone. Let me explain.

Understand something. I’m a lawyer specializing in civil rights and constitutional law. For the most part, I’m keeping my opinions out of this piece. What you’re reading here is an objective rundown of both the constitutional questions raised by affirmative action and the arguments offered for resolving them.


The 14th Amendment’s Equal Protection Clause—adopted after the Civil War—says that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” What this means, in essence, is that the government cannot classify people into groups and then treat one group differently than another. That’s the gist, and it prevents many different types of discrimination.

First, an example of the general principle. This clause was why, during the segregation era, great pains were taken to create and perpetuate the façade of “separate but equal.” Though the separate facilities for blacks were not at all equal to the “whites only” ones, the laws and policies behind segregation pretended that they were. If this pretense had not been employed, then there would have been no way to argue in court that segregation was constitutional. In other words, thanks to the Equal Protection Clause and but for the fictitious “separate but equal,” segregation was unconstitutional from the word go.


Like all constitutional protections, the Equal Protection Clause is not absolute. There is some room for the government to classify people into separate groups and then treat the groups differently. To figure out when it is okay to make such an exception to the Equal Protection Clause, two related variables need to be considered. One, the type of classification in question. Two, the justification for it and the means of furthering that justification. The first determines which legal test we use to scrutinize the law’s constitutionality, and the second determines whether the law actually passes the test.

Examples. When the government passes a law saying “only people who go to law school and pass the bar can practice law,” it is classifying people into groups and then treating the groups differently. This means that the law infringes upon the Equal Protection Clause. Yet, it’s not like the government has a history of discriminating against people who don’t choose to go to law school. For this and other similar reasons, we subject the law to the weakest test. Now we want to know if the law can pass the test, so we turn to its justification. The government says “we want to protect people who need legal advice by making sure the person giving that advice is properly trained.” This is a strong justification, and we’re using the weakest test, so the law is ruled constitutional. Thus, we’ve carved out an exception to the Equal Protection Clause.

Now pretend the law says “only white people can practice law.” This law is immediately suspect (important buzz word), as it classifies people down a suspicious line: race. The government has a history of racial discrimination. Racial minorities are more politically vulnerable populations, and a person’s race is almost always immediately apparent from sight alone. Those are the types of reasons making laws that classify people along racial lines immediately suspect. And, when we’re considering the constitutionality of laws that use suspect classifications, we always use the strongest legal test: strict scrutiny. If a law is subject to strict scrutiny, then the government needs to have a really, really, ridiculously good reason for passing it. Almost all laws subject to strict scrutiny fail. As there is absolutely no justification whatsoever for allowing only whites to practice law, and strict scrutiny is a really hard test, this law is unconstitutional.


So now we know how the Equal Protection Clause works. Let’s apply it to affirmative action.

Affirmative action in college admissions classifies people into groups along racial lines and then treats the groups differently. In other words, these college admissions policies employ a suspect classification: race. Hello, strict scrutiny.

Remember what happens to most laws subject to strict scrutiny? They fail. However, when we’re talking about equal protection cases, there are two notable exceptions. The first is the Korematsu case, which has never been overruled. That was when President F.D.R.’s Supreme Court ruled the World War II Japanese internment constitutional, accepting national security as a sufficient justification for it. The second notable example of a law that passed strict scrutiny? You guessed it: the earlier affirmative action cases.

Understand this. When we’re talking about equal protection theory generally, affirmative action is, in some ways, on the same level as the Japanese internment.

Of course, when we go down into the specifics, the cases couldn’t be more different; both the “what” and the “why.” So let’s talk about the justification for affirmative action in college admissions and whether the policies can pass strict scrutiny a second time.


The justification offered for affirmative action in college admissions is diversity. The government argues that using affirmative action to ensure a diverse student body enriches the learning experience. Understand that it does not argue that we need affirmative action in order to correct our country’s legacy of slavery and segregation. There are a few important reasons it doesn’t. Still, it would take almost a whole separate article to go into them. Here, you just have to trust me when I say that the government makes the right move by offering diversity as the justification to beat strict scrutiny.

Yet, there is a problem with it nonetheless. The Supreme Court is a court of law. And what do you have to do to win your case in a court of law? You have to prove it.

Back to the segregation example. When Thurgood Marshall argued before the Court in the famous Brown v. Board of Education case, he didn’t just stand up and say “segregation in public schools is bad for black kids” or “separate schools are not equal.” No. He offered a lot of proof, most notably the doll experiments. Those were experiments run solely for the case. In short, what they did was show a bunch of black children two dolls—one white and one black—and asked the kids which was the “good” doll and which was the “bad” one. Black child after black child said that the white doll was good and the black doll bad.

That type of evidence is powerful. I encourage you to watch the videos of the experiments, for they are truly heartbreaking.

Back to affirmative action. What kind of evidence has been offered to prove that diversity in higher education is a strong justification worthy of passing strict scrutiny?


Almost none. You can blame it on the lawyers being lazy or lacking creativity, or you can blame it on the fact that this is the type of thing that is hard to prove. The latter certainly did not stop Thurgood Marshall. Still, the bottom line is that no one has done much of anything to actually prove the case for affirmative action.

Yet, if no one has proved the case, how is it that affirmative action in college admissions has previously been upheld? For the answer, we look to Justice O’Connor’s controlling opinion in the 2003 Grutter v. Bollinger case. She tells us this: “[t]he [school’s] educational judgment that such diversity is essential to its educational mission is one to which we defer.” In other words, in the Bollinger case, the Court told schools you don’t have to prove the case for affirmative action. We’ll take your word for it.

Understand what this means. The Court had to break the rules in order to uphold affirmative action in college admissions. When you bring a case in a court of law, judges are not supposed to “defer” to anything you have to say. They’re supposed to make you prove it—especially when we’re talking about strict scrutiny. Make no mistake: with that single sentence from Justice O’Connor, the Court steps out onto incredibly thin ice. This is why affirmative action in college admissions is in danger of being ruled unconstitutional.


I can go on for pages. There is so much more to say on this topic from the legal perspective. Why were the Justices willing to break the rules? Why is remedying past racial injustices a losing justification for affirmative action? To answer these questions is to get down into the real nitty-gritty of legal theory and realism. I’d be remiss, however, if I did not address the recent firestorm surrounding Justice Scalia.

There is a conservative line of thought arguing that affirmative action in college admissions doesn’t actually help minority students—and, indeed, may hurt them. Proponents of this argument submit that affirmative action really only helps white liberals feel good and rid themselves of their white guilt. Affirmative action, they say, is like putting a band-aid on a stab wound: a surface-level solution that does nothing to confront the underlying problems. Further, they offer all sorts of evidence showing that affirmative action programs actually hurt minority students.

So, when Justice Scalia recently asked during oral arguments about how black students perform in college, he wasn’t sitting on the bench saying a bunch of racist stuff. The man simply is not a racist. Further, he’s written countless opinions that liberals would applaud, if they’d ever heard about them. Yes, his questions were ineptly formulated. That doesn’t make him a racist. Rather, he’s an elderly man unversed in political correctness with a tough job that requires tackling some of our nation’s most sensitive issues.

And what is his job, as a judge? Probing the evidence and making a decision. How does that look here, and why is it important?

Well, if it is proven in court that affirmative action policies in fact end up hurting minority students, then the justification for them—diversity—completely disappears. In other words, we wouldn’t make an exception to the Equal Protection Clause for a college admissions policy that employs suspect classifications by giving preferential treatment to racial minorities and then actually ends up hurting those minorities on the grounds that a bunch of white liberals want diversity in schools. That’s an example of the Constitution working.


The Constitution is designed as a last resort, a backstop, a rough blueprint. It ensures fealty to democracy and some basic continuity by enshrining and protecting our core values, and it leaves plenty of room for us to grow over time by being limited in application. We do not invoke the Constitution casually, nor do we make exceptions to it lightly. We do not forget that it has to be interpreted in a manner such that it endures well beyond our time. Above all else, we do not pretend that it provides an answer to all our present problems.

When it comes to the constitutionality of affirmative action in college admissions, we are where we are. No one has proven the case for it. Further, the Court had to break the rules in order to uphold it. At this point, it is doubtful that anything can save race-based college admissions programs from the Equal Protection Clause. That’s not necessarily a bad thing, for, at this point, one question rings out loud and clear. Is there any way we can accomplish the same goals without having to deal with strict scrutiny? The answer is yes, and it doesn’t take a lawyer to figure out how.