The U.S. Supreme Court’s recent affirmative action ruling should not be treated as a racial companion of last year’s reversal of long-standing reproductive rights.

The court’s ruling related to programs at Harvard University and the University of North Carolina preserves a foundational principle, whereas the Dobbs decision, which overturned Roe v. Wade, destroyed a foundational right. The court basically said that universities can’t use a race-based approach to redress the damage from the present-day consequences of historical racism. While the court closed the door on the use of race as a plus factor in making decisions, it specifically left available every other factor in the pursuit of equity.

It is well settled, for example, that disinvestment and segregation have created a society in which socioeconomic status — individual or communal — and geography are strongly correlated to race. In Chicago, we call it the tale of two cities. The Supreme Court makes clear that precisely those and other strongly correlating factors may be a basis for constructing diverse and equitably composed student bodies on our nation’s university campuses.

New York Times columnist David French nailed it when stating that sometimes, bad facts make bad law, and other times bad facts reveal the need for better law. What we decided to do a long time ago, before we had a grasp of the data, was to construct a corrective approach to past and current racial discrimination through policy and legislation that is based on race itself. And that is unconstitutional.

We decided as a matter of policy to make a current generation of white people (and Asian Americans) bear the burden of individualized disadvantage to offset the previous generational benefit of past racism against Black and brown people. Make no mistake — as a matter of policy, we might decide race-based approaches are the easiest and most expeditious path. Except for one thing. The Constitution as amended disallows a race-based approach. There is an unambiguous difference between affirmative action policies and legislation and the constitutional standard.

So where do we go now in the critical effort to correct the stain of our racist past?

The data — which we have command of today to a degree we lacked in the past — shows that racism is highly correlated to many inequitable societal outcomes. But we shouldn’t have to be governed by affirmative action laws to resolve these problems and expand minority opportunities. We can correct for racism through means other than race-based offsetting.

We are allowed to enact a reset that focuses on inequity in its nonracial manifestations. Such a shift would yield not only the same racial diversity brought about by now-prohibited approaches, but it also would help others who’ve faced challenges that are just as serious. President Barack Obama said it best: “If there’s a young white person who has been working hard, struggling, and has overcome great odds, that’s something that should be taken into account.” He cited his daughters as examples of those who should not get preferences.

The Supreme Court ruling will affect other areas beyond affirmative action in university admissions. Long before racial diversity became a societal imperative, universities, particularly the so-called elite ones, have engaged in social engineering by conferring special and preferential admissions, such as accommodations for athletes, the children of alumni and students from wealthy and powerful families. And fleeting expressions of disapproval by the court notwithstanding, these institutions have long known this day was coming. Many have openly planned for the alternatives approaches to equity and diversity now needed.

There is real irony in the reaction to the Supreme Court’s decision. The affirmative action cases were about using racial preference to grant students admission into elite colleges and universities, many of them private. Yet the loudest critics of the decision are mute on teacher union efforts to deny impoverished families, disproportionately Black and brown, access to often far superior parochial and other private schools, as well as public charter schools, leaving school quality determined by ZIP code and income. This is education redlining.

Some believe this Supreme Court decision will be a political repeat of the Dobbs ruling. It won’t be. A clear majority of surveyed Americans opposed an overturning of Roe prior to the draft opinion leak and the official ruling, according to various polls. By contrast, a Pew Research Center poll released last month found 50% of respondents disapproved of certain colleges and universities taking race and ethnicity into account in admission decisions. Only 33% approved of the practice. An ABC News/Ipsos poll conducted after the court ruling found that 52% approved and 32% disapproved.

What we decided to do a long time ago, before we had a grasp of the data, was to construct a corrective based on race itself. But better solutions exist.

I’m confident that data years from now will show no difference in admission diversity statistics. And it will have occurred in a quieter and eventually less divisive way.

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