A majority on the US Supreme Court unraveled decades of case law on affirmative action this June when they found that Harvard University and the University of North Carolina’s use of race as a factor in a holistic admissions process was an unconstitutional violation of the 14th Amendment’s equal protection clause. As Justice Sonia Sotomayor noted in dissent, “the Court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society.”

In her own scathing dissent, Justice Ketanji Brown Jackson lifted up the initial promise and purpose of the 14th Amendment and gave voice to the still urgent need to address the “gulf-sized race-based gaps” in “the health, wealth, and well-being of American citizens” that persist today “Every moment these gaps persist is a moment in which this great country falls short of actualizing one of its foundational principles—the ‘self-evident’ truth that all of us are created equal.”

We can heed that call because, despite the disconcerting outcome and reasoning of this case, there is a way forward. As Justice Brett Kavanaugh’s concurrence noted, institutions “can, of course, act to undo the effects of past discrimination in many permissible ways that do not involve classification by race.” Citing the late Justice Antonin Scalia, even Justice Clarence Thomas, who has shown himself to be in every way an enemy of racial justice and progress, conceded that there have been legally permissible measures “’undo[ing] the effects of past discrimination in [a way] that do[es] not involve classification by race,’ even though they had ‘a racially disproportionate impact.’”

Indeed, the work to deepen racial equity is already underway across the country fully within the constraints of this noxious Supreme Court decision. Local government is a prime example. The Government Alliance on Race and Equity (GARE), with over 450 local and state government entities as members, employs an approach that is informed by the reality of racial equity gaps and strives to close them without using what the court describes as “racial classifications.” President Biden’s 2021 executive order on racial equity has also brought that approach across the federal government.

Read the full article about racially equitable policy by Cathy Albisa and Julie Nelson at Stanford Social Innovation Review.