With a new Supreme Court term beginning this week, it is now perhaps time to reconsider one of the court’s most impactful rulings of the past few years: Students for Fair Admissions v. Harvard.
When the Supreme Court struck down race-conscious admissions in 2023, the headlines all read the same: Affirmative action is over. Chief Justice John Roberts’ majority opinion made the conclusion sound final, even inevitable. And Justice Clarence Thomas’ concurrence drove the nail in the coffin, insisting that the Constitution is and always has been colorblind, tolerating no racial distinctions even if they are designed to remediate decades of racial subordination. But look closer at Thomas’ opinion, and something remarkable happens. In trying to shut the door on race-conscious affirmative action, he may have quietly left another affirmative action door wide open.
In Thomas’ concurrence, to explain why the Freedmen’s Bureau Acts of 1865 and 1866 do not authorize race-conscious affirmative action programs, Thomas recasts the acts as “status-based” laws rather than race-conscious ones. The bureau, in his telling, didn’t help Black people because they were Black; it helped “freedmen” and “refugees” because of their legal status after the Civil War. Freedmen were overwhelmingly Black, but that didn’t matter, he argued, because the law turned on status, not race. For an originalist like Thomas, this interpretation is critical because original meaning overwhelmingly informs contemporary understandings of the Constitution.
Why does this matter now? In equal protection law, racial classifications trigger the highest level of judicial scrutiny—“strict scrutiny”—and almost never survive. Race-neutral and status-based classifications, by contrast, are generally reviewed under the far more forgiving “rational basis” standard. That’s the difference between a law being almost certainly struck down and one being almost certainly upheld
If Thomas is right that “freedmen” was a status, not a racial category, in 1865, then today “descendants of American slavery” also designates a status, not a presumptively unconstitutional racial distinction. That means universities, governments, and private institutions could design programs specifically for those descendants—scholarships, admissions preferences, business contracting opportunities—and defend them in court without facing strict scrutiny. On Thomas’ own reasoning, those policies would need only a plausible public purpose to survive. In other words, the very concurrence meant to dismantle affirmative action might also provide the constitutional blueprint to bring it back and to justify reparations programs under a different name.