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鈥淎 student must be treated based on his or her experiences as an individual鈥攏ot 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鈥檚 identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice.鈥�

This distorted echo of Dr. Martin Luther King Jr.鈥檚 鈥渃ontent of character鈥� declaration concluded the United States Supreme Court鈥檚 consolidated decision in two affirmative action higher education cases brought this term by Plaintiff Students for Fair Admissions. I, along with watchers of all stripes, had little doubt that the ultra-conservative Court鈥攚ith its disregard for 鈥攚ould deal a fatal blow to 鈥渞ace-conscious鈥� college admissions. Long before the recent decisions that rejected Harvard College and University of North Carolina鈥檚 (UNC) processes, had been gradually eroding the practice.

As a Black graduate of Harvard College and a former legal practitioner, I view the Court鈥檚 opinion through double-consciousness. I can parse its language based on studying constitutional law. More significantly, I view it through the lens of a first-generation college student, a Pell Grant recipient, and the daughter of a Black World War II veteran, who, after attending a Jim Crow high school, never benefited from the G.I. Bill鈥檚 low-cost mortgages or college tuition. While I was fortunate enough to attend one of the best high schools in the D.C. area, doubters questioned my right to occupy these spaces they had claimed as theirs. I knew them intimately when news of my early action admission was greeted with unkind mutterings, my college years colored by and by a Harvard professor鈥檚 claim that on the campus in the 1960s.

It was impossible to disregard these lived experiences as I read the Court鈥檚 opinion. Anyone on the Supreme Court who tells you that the course of their life does not influence their legal opinions鈥攖hat they are simply 鈥攊s less than truthful. The proof of this statement lies in both their words and outcome, and evinces their unexamined privilege.

Chief Justice Roberts, writing for the majority, falsely equates race-based affirmative action鈥� and subsequently applied to Harvard admissions in the late 1960s鈥攚ith the type of invidious racial discrimination that it was enacted to redress, a conclusion that only a person who has always moved through the most elite, largely white circles could reach. He then proceeded to read colorblindness into the Equal Protection clause of the Fourteenth Amendment, thus ignoring its very origins: the treatment of Black people as legal inferiors, such that they 鈥渉ad not rights which the white man was bound to respect,鈥� from . The majority opinion also reveals telling stereotypes about the Black and Brown students admitted to Harvard, even as Chief Justice Roberts chides the Harvard process for pernicious stereotypes it promoted by building a racial 鈥減lus factor鈥� into its admissions process:

鈥淕aining admission to Harvard is thus no easy feat. It can depend on having excellent grades, glowing recommendation letters, or overcoming significant adversity. It can also depend on your race.鈥�

While implying that the candidates need not have any of the former if they have the latter, Chief Justice Roberts ignores other Harvard preferences for legacies, athletes, children of faculty, and those on the dean鈥檚 interest lists. These preferences largely benefit white students, and . The roughly 12% of Black students are therefore the sole scapegoats for Harvard鈥檚 admission rates for students of white and Asian descent being lower than if test scores and grades were outright determinants. (Note that the composition of recent Harvard classes is still , while people of Asian origin comprise approximately ).

Despite sustained preferential treatment of white students and the reality of systemic racism, the Roberts Court declares that the clock set in its prior Grutter v. Bollinger decision, positing that race-conscious admissions would be unnecessary within 25 years, or by 2028, has run out. It鈥檚 no surprise that the white conservative majority of this Court would issue an opinion so short-sighted when it comes to race. But there were also three more Justices: For the first time, a Court with two Black justices and one Latina justice was considering the issue of affirmative action in higher education. For me, the most compelling conversation was the one between Justice Thomas鈥檚 concurrence and Justice Ketanji Brown Jackson鈥檚 dissent in the UNC case.

Justice Thomas鈥檚 concurrence of grievance is deeply rooted in his experience as at Yale Law School in the early days of affirmative action. He warns of 鈥渆lites bearing racial theories,鈥� citing the Dred Scott and Plessy decisions鈥攜et another false equivalence. He then spends an inordinate amount of space validating race science by questioning the ability of some Black and Latinx students to compete in highly selective institutions and remarking on the 鈥渂adge of racial inferiority鈥� that 鈥渟tamps鈥� the remainder.

In contrast, Justice Jackson effectively illustrates the deep-seated inequities in education, housing, generational wealth, and health that are legacies of racial discrimination and exploitation. She does so through the fictional John, a white seventh-generation applicant, and James, a first-generation Black applicant. While Black Americans are by no means a monolith, the story she tells is one that has repeated itself frequently throughout American history, including and in mine. She carefully walks through UNC鈥檚 use of race as merely one of many factors considered as part of the 鈥減ersonalized assessment of the advantages and disadvantages that every applicant might have received by accident of birth plus all that has happened to them since.鈥� She concludes by calling out the perverse logic of prematurely ending race-conscious admissions, striking at the very heart of the majority鈥檚 decision: 鈥淩equiring colleges to ignore the initial race-linked opportunity gap between applicants 鈥� will inevitably widen that gap, not narrow it鈥� and 鈥渄elay the day that every American has an equal opportunity to thrive regardless of race.鈥�

With the fate of race-conscious admissions settled for now, it is uncertain how institutions of higher education can immediately maintain the current levels of racial and ethnic diversity in their classes. Race-neutral alternatives鈥攊ncluding class-based affirmative action, optionalizing standardized testing, percentage plans, and targeted recruitment鈥攈ave been employed at various institutions, though none have been as efficacious as race-conscious admissions: The result has been significant . HBCUs (historically black colleges and universities), minority-serving institutions, and Tribal colleges and universities鈥攎any of which originated as sole alternatives for people of color wishing to pursue educational opportunities in segregated environments鈥攚ill become more important than ever, but that also means we must invest more heavily in these institutions. Currently, the 10 largest than the 10 largest endowments for predominantly white institutions.

We also need to urgently address legacy admissions and early decision policies used at other elite institutions to lock in rich students. Advocacy groups have already initiated alleging that legacy admissions disadvantage and harm applicants of color. On the state level, two Democratic Massachusetts legislators have introduced , which proposes a tax on Massachusetts practitioners of legacy admissions meeting an endowment threshold in order to redistribute the funds to a trust for community colleges. Meanwhile, in Congress, Senator Jeff Merkley (D-OR) and Representative Jamaal Bowman (D-NY-16) have introduced the to 鈥渁ddress long-standing inequities and create more access for underrepresented students in higher education鈥� by prohibiting higher institutions participating in Federal student aid programs from giving donor or legacy preferences.

As students from historically marginalized groups seek postsecondary educational opportunities in institutions no longer empowered to practice race-conscious admission, it will be up to these institutions and all of us to rethink current practices that contribute to equity, and to resource and support effective solutions.