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Is affirmative action dead? Not so fast.

The US Supreme Court.Jose Luis Magana/Associated Press

The reports of affirmative action’s death are greatly exaggerated.

Read the fine print, folks.

Sure, the Supreme Court may have ended race-conscious college admissions as we know it, but the 6-3 ruling did not ban the use of race altogether.

“[N]othing 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,” wrote Chief Justice John Roberts, who authored the majority opinion.

This means colleges and universities that are committed to building diverse student bodies still can. It will require creativity and legal jiu-jitsu, but it can be done. Institutions should consider this their new imperative to ensure that our future pipeline of workers and leaders continues to be diverse as it can be.


This outcome — while disappointing and disheartening — was widely expected from a conservative court after a pair of lawsuits against Harvard and the University of North Carolina challenged the use of race in their admissions policies.

What I worried about the most was that the high court would construct a far-reaching ruling that dismantles affirmative action everywhere: No more diversity goals in government contracts. No more diversity, equity, and inclusion programs anywhere.

As historic as Thursday’s decision was, those programs are intact — at least for now.

“We are seeing an extremely narrow ruling focused on the admissions process,” said Iván Espinoza-Madrigal, executive director of the Lawyers for Civil Rights in Boston. “It will require Harvard, UNC, and other universities to re-examine and reconfigure their admissions processes.”

Students walk through a gate at Harvard University on June 29, 2023, in Cambridge, Mass. Michael Casey/Associated Press

“But most certainly,” he added, “it is not a rejection of affirmative action — wholesale or otherwise.”

Similarly, Mina Makarious, a partner at law firm Anderson & Kreiger who specializes in public sector law, summed up the ruling this way: “Not great but could have been worse.”


Still, thinking of his clients, which include government agencies and municipalities, he anticipates more scrutiny of diversity efforts.

“Time will tell whether folks that would have wanted to challenge other race-conscious initiatives will see this decision as an opportunity to chill even discussion of them,” Makarious said. “When you think about it from public entities’ perspective or other smaller companies that might be doing a DEI initiative ... they won’t have the Harvard endowment behind them to litigate the case.”

At times, the 237-page ruling was difficult to parse. That’s because while the majority opinion focused on race in college admissions and serves as the so-called law of the land, five other justices weighed in vociferously providing commentary on affirmative action in three concurring opinions and two dissenting ones.

These justices seemed intent on making their own headlines.

In his concurring opinion, Justice Clarence Thomas expressed how he would like to outright eliminate racial preferences.

“I write separately to offer an originalist defense of the colorblind Constitution ... to clarify that all forms of discrimination based on race — including so-called affirmative action — are prohibited under the Constitution; and to emphasize the pernicious effects of all such discrimination,” wrote Thomas, the lone justice of color to side with the majority.

Writing in the dissent, Justice Ketanji Brown Jackson not only offered up a defense of affirmative action but a blistering takedown of her opposing colleagues.


Judge Ketanji Brown Jackson shakes hands with President Joe Biden after he introduced her to speak at an event on the South Lawn of the White House in Washington, April 8, 2022, celebrating the confirmation of Jackson as the first Black woman to reach the Supreme Court. Andrew Harnik/Associated Press

“With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat,” she wrote. “But deeming race irrelevant in law does not make it so in life.”

Meanwhile, Justice Sonia Sotomayor in her dissenting opinion took on the role of rallying the resistance.

“Notwithstanding this Court’s actions, however, society’s progress toward equality cannot be permanently halted,” she wrote. “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.”

She’s right. If you believe in diversity — that our country, universities, organizations, and companies are stronger and richer when everyone gets to participate — now is the time to bulletproof policies, not back down from them.

This is a moment that will separate those who have been checking the box from those who are ready to fight to create a truly equal society. It’s also a moment to remind ourselves why we stay in this fight.

Peter Hurst, who is Black, went to elite schools — Duke University as an undergraduate and Harvard for law school. The opportunity shaped his life and career.

“It affects everything,” said Hurst, who is president of the Greater New England Minority Supplier Diversity Council. “It’s not just the personal benefit to me, but the benefit of giving someone like me a chance to make a positive contribution to society. It’s society that benefits, not just the individual.”

To Hurst, the decision is a chance to reset the conversation about race.


“We need to stop thinking about everything is a zero-sum game. It’s not,” he added. “We need to make the pie bigger. This country will be stronger. Everybody can participate in the economic prosperity.”

Affirmative action should have an end date, but that day is not today. That day is when we live in a colorblind society. We are not there yet — far from it.

Shirley Leung is a Business columnist. She can be reached at shirley.leung@globe.com.