Affirmative Action After the Supreme Court

What Is Affirmative Action

Affirmative action means taking active steps to open jobs, contracts, and college seats to groups that faced discrimination, sometimes by considering race or sex in the decision. The phrase comes from a 1961 order telling federal contractors to “take affirmative action to ensure that applicants are employed” without regard to “race, creed, color, or national origin” (Executive Order 10925). Racial quotas have been illegal in college admissions since 1978.

Affirmative action and DEI are often used as if they were one thing. Affirmative action is a legal mechanism for admissions, hiring, and contracting decisions. DEI is a broader set of workplace and campus programs, and it has its own page on what DEI is and the fight to end it.

Is Affirmative Action Still Legal?

In college admissions, no. In jobs and contracting, pieces of it survive. Each part moved on its own track, through a court ruling, an executive order, or an agency rule. This is where each part stands on one date.

Where Each Part of Affirmative Action Stands

As of October 6, 2026

• Race as a factor in college admissions Final ruling, barred

  SFFA v. Harvard ended it on June 29, 2023, at public colleges and at private colleges that take federal funds. (source)

• Essays about how race shaped an applicant Final ruling, allowed

  The same opinion lets colleges consider them, as long as any benefit is tied to the student's own experience. (source)

• Admissions data reported by race and sex Agency action, new federal collection

  On September 14, 2026, the Education Department revised its plan to require admissions outcomes by race and sex, including years before the 2023 ruling, as a supplement to its federal college data system. (source)

• Military academy admissions Agency action, race no longer used

  The academies dropped race-based admissions goals shortly after Defense Secretary Pete Hegseth took office in 2025. Students for Fair Admissions dropped its lawsuits against West Point and the Air Force Academy, Higher Ed Dive reported on August 12, 2025. (source)

• Federal contractors, by race and sex Ended

  Executive Order 14173 revoked Executive Order 11246 on January 21, 2025. The rule removing its regulations takes effect October 26, 2026. (source)

• Federal contractors, for disabled workers and veterans Law, weakened

  Federal statutes still require it. The Labor Department dropped the 7% disability hiring goal and the self-identification form effective September 21, 2026. (source)

• Voluntary plans at private employers Law, guidance withdrawn

  The EEOC rescinded its 1979 guidelines on July 6, 2026. The Supreme Court decisions allowing some voluntary plans, Weber (1979) and Johnson (1987), have not been overruled. (source)

• Transportation contracts (DBE program) Agency action, presumption removed

  An October 3, 2025 interim rule removed the presumption that women- and minority-owned firms are disadvantaged. (source)

• Education Department letter against race-conscious programs Final ruling, vacated

  A federal judge in Maryland vacated the February 14, 2025 letter on August 14, 2025, and the appeals court dismissed the department's appeal at its request in January 2026. (source)

Source: Supreme Court opinion in SFFA v. Harvard; Federal Register; Higher Ed Dive; K-12 Dive

The broader rollback of civil rights enforcement this ruling fed into is tracked in the brief on how Juneteenth-era civil rights protections are being dismantled.

Inside the Harvard Admissions Process the Court Struck Down

Harvard tracked its class by race right up to the final cut. The Supreme Court’s opinion walks through the process step by step, drawing on the trial record in Students for Fair Admissions v. Harvard.

A “first reader” scored every application in six categories: academic, extracurricular, athletic, school support, personal, and overall. For the overall score, first readers “can and do take an applicant’s race into account.” Regional subcommittees then met for three to five days each and could weigh race in their recommendations.

The 40-member full committee opened by discussing “the relative breakdown of applicants by race.” The “goal,” according to Harvard’s director of admissions, was “to make sure that [Harvard does] not hav[e] a dramatic drop-off” in minority admissions from the prior class. Each applicant was discussed one by one, and only an applicant who won a majority of the committee’s votes was tentatively accepted.

Then came the “lop.” Applicants Harvard considered cutting went onto a list with four pieces of information: legacy status, recruited athlete status, financial aid eligibility, and race. At the University of North Carolina, the other school in the case, readers were required to consider each applicant’s race.

Chief Justice John Roberts pointed to Harvard’s own results. From 2009 through 2018, Black students made up between 10.0% and 11.7% of each admitted class. He wrote: “Harvard’s focus on numbers is obvious.” Justice Sotomayor disagreed. She wrote that the steady shares reflect an applicant pool whose racial makeup “also varies very little over this period.”

What the Affirmative Action Ruling Banned and Allowed

The Court ended race as a factor, not every mention of race. Chief Justice Roberts wrote that nothing in the opinion stops colleges “from considering an applicant’s discussion of how race affected his or her life.” That experience can come “through discrimination, inspiration, or otherwise.”

He added a limit in the next breath. Colleges “may not simply establish through application essays or other means the regime we hold unlawful today.” A benefit to a student who overcame discrimination “must be tied to that student’s courage and determination,” not to the student’s race.

The military academies were carved out in a footnote. The Court said its opinion “does not address the issue” at the academies. It pointed to “the potentially distinct interests that military academies may present.” That question closed through policy, not a ruling, when the academies dropped race-based admissions goals in early 2025.

History of Affirmative Action, 1961 to 2025

Affirmative action began as an order to federal contractors, spread to college admissions, and was narrowed by the Supreme Court and by states before the 2023 ruling ended it in admissions.

1. 1961 The phrase enters federal policy Executive Order 10925 tells federal contractors to take affirmative action against discrimination.
2. 1965 Executive Order 11246 The contractor rule that lasted 60 years.
3. 1978 Regents v. Bakke Quotas struck down, race allowed as one factor. (source)
4. 1996 California Proposition 209 The first statewide ban, passed by voters. (source)
5. 2003 Grutter v. Bollinger The Court upholds a law school's holistic use of race. (source)
6. 2023 SFFA v. Harvard Race-conscious admissions end.
7. 2025 Executive Order 11246 revoked Contractor affirmative action by race and sex ends.

Affirmative Action From 1961 to the 2023 Supreme Court Ruling: 1961: The phrase enters federal policy (Executive Order 10925 tells federal contractors to take affirmative action against discrimination.). 1965: Executive Order 11246 (The contractor rule that lasted 60 years.). 1978: Regents v. Bakke (Quotas struck down, race allowed as one factor.). 1996: California Proposition 209 (The first statewide ban, passed by voters.). 2003: Grutter v. Bollinger (The Court upholds a law school's holistic use of race.). 2023: SFFA v. Harvard (Race-conscious admissions end.). 2025: Executive Order 11246 revoked (Contractor affirmative action by race and sex ends.).

1961: President John F. Kennedy’s Executive Order 10925 told federal contractors to “take affirmative action” so that hiring and treatment on the job happened “without regard to” race, creed, color, or national origin.

1965: President Lyndon Johnson’s Executive Order 11246, signed September 24, repeated that duty and made the Labor Department its enforcer. It governed federal contractors for almost 60 years.

1978: In Regents of the University of California v. Bakke, the Supreme Court struck down the UC Davis medical school’s program, which reserved 16 places in a class of 100 for minority applicants. Justice Lewis Powell’s opinion allowed race to be “deemed a ‘plus’ in a particular applicant’s file,” as long as it did not insulate anyone from comparison with the whole pool.

1996: California voters approved Proposition 209, barring preferences by race or sex in public education, employment, and contracting. By 2023, the Supreme Court’s majority noted, “several States,” among them California, Florida and Michigan, “have prohibited race-based admissions outright.”

2003: In Grutter v. Bollinger, the Court upheld the University of Michigan Law School’s holistic use of race. Justice Sandra Day O’Connor added a prediction. “We expect that 25 years from now,” she wrote, “the use of racial preferences will no longer be necessary to further the interest approved today.”

2023: Twenty years later, the Court ended race-conscious admissions in Students for Fair Admissions v. Harvard.

2025: On January 21, Executive Order 14173 revoked Executive Order 11246.

How Enrollment Changed After the Ruling

At four colleges that published comparable numbers, the share of Black students in the first class admitted after the ruling fell, in some cases sharply. Each school below is compared with itself, using the same measure for both years.

Fall 2023 (last class before the ruling) Fall 2024 (first class after)

1. MIT 15.0% → 5.0% (−10.0 pts)
2. Amherst College 11.0% → 3.0% (−8.0 pts)
3. Harvard College 18.0% → 14.0% (−4.0 pts)
4. UNC-Chapel Hill (first-year and transfer) 10.5% → 7.8% (−2.7 pts)

0%10%20%

Black students' share of entering classes before and after the 2023 ruling

Group	Fall 2023 (last class before the ruling)	Fall 2024 (first class after)	Change
MIT	15.0%	5.0%	−10.0 pts
Amherst College	11.0%	3.0%	−8.0 pts
Harvard College	18.0%	14.0%	−4.0 pts
UNC-Chapel Hill (first-year and transfer)	10.5%	7.8%	−2.7 pts

Figures are each college's own published numbers. Totals at MIT and Harvard can exceed 100% because students may select more than one race. Amherst uses federal reporting categories. UNC includes transfer students. Sources: MIT first-year class profile (2023 and 2024 versions, archived), Amherst College class profiles, Harvard Gazette, UNC-Chapel Hill.

The numbers moved in different directions for different groups. At Harvard, the Hispanic share rose from 14% to 16% while the Black share fell, and Asian American students held at 37% (Harvard Gazette). At MIT, Asian American students rose from 40% to 47% of the class (MIT, 2023 and 2024).

Not every school saw a drop. Duke and the University of Virginia reported that their combined share of Black, Hispanic, and Native students rose, according to Harvard Magazine’s roundup of early reports.

One year of data also leaves real uncertainty. At Harvard, the share of students who did not disclose their race doubled, from 4% to 8%, so some students who would once have reported a race did not. Amherst’s figures come from its class of 2027 and class of 2028 profiles, which use federal reporting categories, and UNC’s from its fall 2024 release on new first-year and transfer students.

What California’s Ban Showed

The best long-run evidence comes from California, which banned affirmative action at its public universities in 1998. Economist Zachary Bleemer tracked every University of California applicant from 1994 to 2002 into college and work (Quarterly Journal of Economics, 2022).

He found that the ban caused underrepresented minority applicants to “cascade into lower-quality colleges.” Their degree completion fell, overall and in science and engineering. Their average wages in their twenties and thirties fell too, driven by Hispanic applicants. The ban also “deterred thousands of qualified URM students from applying to any UC campus.”

His study speaks directly to the “mismatch” argument. That theory, argued most prominently by law professor Richard Sander in his 2012 book with Stuart Taylor, Mismatch, holds that preferences place students in schools where they struggle, so they would do better at less selective ones. Bleemer found the reverse in California. Students sent to less selective schools by the ban did not graduate at higher rates, and he concluded that affirmative action’s “net educational and wage benefits” for minority applicants exceeded its costs for white and Asian applicants on the margin.

Jobs and Federal Contracts After 2025

Affirmative action at work ran on executive orders and agency rules, so it changed without a court ruling. For 60 years, companies with federal contracts had to write affirmative action plans for women and people of color under Executive Order 11246.

That order was revoked on January 21, 2025. The Labor Department’s final rule removing its regulations takes effect October 26, 2026. Those regulations also barred contractors from punishing workers for discussing their pay, according to the Labor Department’s proposal, so that protection goes too.

Two other contractor duties rest on statutes, not the order, so they survive. Section 503 of the Rehabilitation Act still requires covered contractors to take “affirmative action” to employ and advance qualified people with disabilities, and a 1974 law does the same for protected veterans. The Labor Department removed the 7% disability hiring goal and the form asking workers to self-identify, effective September 21, 2026.

For private employers, the Equal Employment Opportunity Commission rescinded its 1979 guidelines on voluntary affirmative action on July 6, 2026, calling them inconsistent with the statute and obsolete. In road and airport contracting, the Transportation Department dropped the presumption that firms owned by women and people of color are disadvantaged.

The Honest Disagreement

The public was split before the ruling, and the split followed party lines. In a Pew Research Center survey in spring 2023, half of adults disapproved of selective colleges considering race and ethnicity.

33%

16%

50%

1%

• Approve (33%)
• Not sure (16%)
• Disapprove (50%)
• No answer (1%)

Source: Pew Research Center, survey of U.S. adults, spring 2023.

Pew found 54% of Democrats approved and 74% of Republicans disapproved. By race, 47% of Black adults approved, compared with 39% of Hispanic, 37% of Asian, and 29% of white adults (Pew Research Center).

The case against race-conscious admissions rests on equal treatment. “Eliminating racial discrimination means eliminating all of it,” Chief Justice Roberts wrote for the majority. A student “must be treated based on his or her experiences as an individual,” he wrote, “not on the basis of race.”

The case for it rests on the country as it is. Justice Sonia Sotomayor wrote that the ruling “cements a superficial rule of colorblindness.” She called the United States “an endemically segregated society where race has always mattered and continues to matter.” Justice Ketanji Brown Jackson put it more briefly: “deeming race irrelevant in law does not make it so in life.”

Both sides now argue over the same evidence. Opponents point to Harvard’s steady racial shares as proof of balancing. Supporters point to California’s results and the first post-ruling classes as proof of what is lost.

Not Every Preference Is Affirmative Action

• Race can still come up in an application. An applicant can still write about how race shaped their life, and a college can still weigh what that experience shows about the student.
• Other preferences survived the ruling. Legacy status and recruited athletes sat on the same Harvard lop list as race. The case did not challenge them, and federal law still allows them.
• Affirmative action is not the same as DEI. Ending one did not legally end the other, though the same 2025 executive order went after both. The DEI page covers that fight.
• Some past federal preferences favored white families. Political scientist Ira Katznelson’s book When Affirmative Action Was White argues that New Deal and GI Bill programs of the 1930s and 1940s were run in ways that largely excluded Black Americans. The history of redlining documents one of those programs.
• Some duties never depended on race or sex. Contractors still have to take affirmative action for people with disabilities and for veterans, because those duties are written into statutes.

Frequently Asked Questions

What is an example of affirmative action?

Before 2023, a college could weigh an applicant’s race as one factor among many, which the Supreme Court then barred. Before 2025, larger federal contractors had to write a yearly plan with hiring goals for women and people of color. Today, federal contractors still must take affirmative action to hire and promote people with disabilities and protected veterans, because those duties are written into law.

Is affirmative action the same as a quota?

No. A quota reserves a set number of seats or jobs for a group. The Supreme Court struck down quotas in college admissions in Bakke in 1978. From then until 2023, colleges could consider race only as one factor in a full review of each applicant.

How did Regents v. Bakke change affirmative action?

Bakke ended the practice of reserving seats by race but allowed race as a “plus” factor. For 45 years, that “one factor among many” approach was the legal model for college admissions, until the 2023 ruling ended it.

Does the 2023 ruling apply to private colleges?

Yes, for colleges that accept federal funding, which is nearly all of them. Harvard is private. The Court held that its program violated Title VI of the Civil Rights Act, which covers any school that receives federal money.

What happened to the lawsuit against the Naval Academy?

A federal judge upheld the Naval Academy’s race-conscious admissions in December 2024. After the academy dropped race-conscious admissions under Defense Secretary Pete Hegseth’s directive in 2025, Students for Fair Admissions and the Justice Department asked an appeals court to dismiss the appeal, and it did in July 2025 (Higher Ed Dive).

What You Can Do

1. If you are applying to college, tell your own story. The Supreme Court’s opinion says colleges may consider an essay about how race affected your life, “be it through discrimination, inspiration, or otherwise.” Write about what you did with that experience.

2. Check the numbers at colleges near you. Most colleges publish a class profile or a Common Data Set each fall with the racial makeup of the entering class. Compare it with the year before, as the chart above does.

3. Ask your state legislators about legacy preferences. Ask whether your state’s public universities still favor the children of alumni and donors, and whether a bill would end it.

4. Send the letter below to your members of Congress. It asks for one thing: co-sponsor the bipartisan Fair College Admissions for Students Act, which would bar legacy and donor preferences at colleges that take federal student aid.