In the lead-up to the Supreme Court’s decision in the Students For Fair Admissions (SFFA) cases, there was little doubt that affirmative action as we knew it would soon be a thing of the past. The question was: How far would the Court go?

With the opportunity to announce a new rule defining the role race could play in higher-education admissions, the Court had some options. A narrow rule might strike down some of Harvard’s or the University of North Carolina’s (UNC) admissions procedures while allowing race to play a continued role in circumscribed state actions. A broader rule would announce that the Court is prepared to sniff out and extinguish any and all continued attempts to deviate from strict colorblindness.

The decision came down on June 29, with the Justices split along the expected line, presenting a trove of opinions, concurrences, and dissents. Even after parsing the language closely, how far the Court went remains something of an open question. At first blush it appears the Court took a muscular approach to ending affirmative action, announcing a broad anti-race-conscious-admissions standard. Writing for the majority, noted affirmative-action critic Chief Justice John Roberts found that both Harvard and UNC violated the Fourteenth Amendment’s Equal Protection Clause, flunking a test designed to reflect how unfavorably we view distinctions based on immutable and morally irrelevant characteristics. Call it “strict scrutiny plus”: exceptions from the Equal Protection Clause’s plain meaning prohibiting all forms of state racial discrimination must be justified on the basis of a compelling state interest, narrowly tailored to achieve that interest, “may never use race as a stereotype or a negative,” and must eventually end. (Presumably, the last prong requires an exit strategy, or a built-in way of knowing when the race-conscious regime is no longer necessary.)

Yet despite presenting significant formal hurdles for race-conscious admissions, it is not clear that this test will play out broadly, because it is unlikely to withstand the massive resistance that lies in wait. As the dissents from Justices Sotomayor and Jackson suggest, universities steeped in theories of racial pessimism are far from prepared to strive for colorblindness so long as racism plays its perceived active and negative role in American life. The universities and their defenders on the Court consequently value what they view as restorative justice, not just in admissions but in curricula and other school programming, to an extent that precludes even beginning to think about colorblindness. That is unlikely to change anytime soon, because these theories are predicated upon (and reinforce) the idea that racism is permanent—“endemic” and “entrenched,” to use Justice Sotomayor’s terms. Proof of this fact is all around us, goes the dissent, in continued inequalities between racial groups that suggest we live “in a society structured by racial segregation.”

The bottom line may be that anything short of the most searching standard designed to root out and punish deviations from strict colorblindness will fail. It is not clear that such a standard is possible, or that even that would work, barring harsher legislative and executive action. Yet the Court opened a small escape hatch through which true-believer university officials can wriggle and continue to run American universities under a racial spoils system.

The roots of the Court’s decision in SFFA and the coming resistance are in the mismatch between universities’ stated rationale since the Bakke decision of 1978 and their actual motivations for engaging in racial bean-counting. Bakke came to mean that “diversity” in higher education sufficed as a compelling interest overcoming the Equal Protection Clause’s plain meaning.

“Diversity” as traditionally understood is plagued with problems as a rationale for race-consciousness. It is overly reductive, equating racial classification with substantive life experience. It presumes that members of each racial group have similar insights to share about the world. It is irreconcilable with our nation’s ad hoc classification scheme that lumps together enormously diverse groups: Scots-Irish and Arabs alike are “white”; Koreans and Pakistanis are “Asian”; Somalians and Liberians are “black or African-American.” If strict scrutiny requires tailoring a policy narrowly to achieve certain ends, then achieving diversity through race-consciousness should have never stood a chance.

That is, unless “diversity” shifts its shape and no longer means a mélange of students learning from each other. As theorized and practiced today, diversity more accurately means advancing, directly through admissions and indirectly through activist education, a particular progressive worldview. Harvard’s own Office of Equity, Diversity, Inclusion, and Belonging concludes that when it comes to diversity, “progress will be made when everyone at Harvard has access to the tools and resources, as well as an understanding of the values and promising practices, needed to advance inclusive excellence in their own communities.”

Adherence to this new “values”-based definition—clear enough once you cut through the jargon—explains universities’ reluctance to even consider colorblindness. Though diversity may have once meant a kind of institutional design conducive to cross-cultural understanding, it is now grounded in advancing progressive social goals, including counteracting perceived systemic oppression through systemic preferences like race-favoritism in admissions. As long as colorblindness impedes those goals, it will be derided by dissenters like Justice Sotomayor, who called it “a superficial rule…in an endemically segregated society where race has always mattered and continues to matter…a veneer.”

To its credit, the Court’s opinion pulls strongly on such threads to show how poorly tailored affirmative action’s means are to its stated ends, revealing just how stark the constitutional infirmities are. One way the Court tugs on loose ends is by emphasizing a requirement expressed in a previous affirmative action case “that universities operate their race-based admissions programs in a manner…sufficiently measurable to permit judicial review.” Given how poorly affirmative action’s means seem to track its ends, the Court demanded to see some legally cognizable outcomes that would allow it to bless this exception from our usual rules against race-conscious policies. Laughably, Harvard attempted to justify its “diversity” emphasis in admissions by listing “better educating its students through diversity” and “producing new knowledge stemming from diverse outlooks” among its primary educational goals. Even crediting the schools for these “plainly worthy” aims, the Court concluded that they were too evasive for courts to scrutinize—likely intentionally so—providing one reason for its failure to withstand strict scrutiny.

The Court also homed in on the tenuous—one is tempted to say pretextual—connection between diversity understood as a compelling educational goal and the defendants’ actual admissions practices. Both universities rely on those “imprecise…arbitrary or undefined” racial categories mentioned above, though no one is stopping them from counting beans at a more granular level, whether based on ethnicity, national origin, or even socioeconomic status. Indeed, as Justice Gorsuch points out in his concurrence, nearly all Harvard students regardless of race seem to be pretty wealthy, yet Harvard “resisted” proposals to admit some non-legacies at the expense of some affirmative-action admittees. It simply beggars belief to think that the schools’ exclusive fixation on race is actually narrowly tailored to achieve diversity as the Bakke Court thought of it. It is quite narrowly tailored, however, to achieve the new definition of diversity, which is mostly concerned with race.

It is easy to see why regimes steeped in the practice of the new diversity fail the “plus” elements. Affirmative action disfavors some racial groups—primarily Asians—who receive lower “personal ratings” than peers from other groups. At best, elite universities’ interviewers and admissions officers engage in systemic, if subconscious, bias on a racial basis. Not great. At worst, our top universities engage in racism covered with the barest varnish. Either way, staking the zero-sum game of college admissions on racial characteristics is a sordid business. But it is inextricable from the business of effecting social change in a world that runs, apparently, on race competition. And why should there be any end in sight if the goal is fighting “entrenched” “endemic” racism?

One of the key tensions running through the decision is about who gets to inherit the mantle of equality. All agree that the Fourteenth Amendment was ratified to better align America with its unrealized founding promise of equality for all, but the majority and dissenters disagree about what it means to make that alignment manifest. The dissent, for its part, takes the position that affirmative steps for minorities are necessary; even if they treat individuals unequally, they will fulfill the Fourteenth Amendment’s promise to remedy group-based inequality.

The majority holds firm in its focus on the individual. Citing the “dedicated belief” of anti-segregation lawyers in Brown v. Board of Education, it insists that “The time for making distinctions based on race had passed.” The best way to achieve equality, even in a nation struggling to cast off its prejudices, was to practice equality. This has long animated the Chief Justice (“the best way to stop discrimination on the basis of race,” he noted in 2007 “is to stop discriminating on the basis of race.”) At its heart, this is an argument based on optimism—that Americans are imperfect but fundamentally decent, and if we stop inflating race with its unwarranted air of importance, we will grow closer to our lofty national ideals.

The Chief usefully draws a distinction between our constitutional ideal and our actual historical practice. Doing so frames the dissents as living in a world of constitutional second-bests, capitulating to human fallenness and our tendency to strip individuals of moral agency. The dissents, viewed this way, are also a bit distracted from what the Constitution actually demands: Not “racial justice” abstractly defined, but equality before the law. The former is vague (if ideal), prone to overcorrection, and beyond government’s ability to effect. But the latter is how the state can order its own actions towards what everyone claims they want, which is for all people to be treated fairly as individuals.

But there is an escape hatch. At the very end of the opinion, Roberts warns that “universities may not simply establish through application essays or other means the regime we hold unlawful today.” However, “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life.” Parsing these two sentences will plague courts for years, because everyone knows—Harvard even announced publicly—that it would rely on the latter to disregard the former. The likely results are that applicants will only become more race-obsessed as they see their personal essays’ racial components as tickets to their dream schools, and courts will have to scrutinize whether schools’ year-to-year racial compositions are suspiciously consistent.

Even a great Supreme Court decision cannot undo the problem of high demand for race jockeying. The dissents embody that demand, representing the fatalism that animates most higher-education discourse on race in America and has been the impetus for the massive expansion of DEI apparatus on campus in recent years. While Roberts celebrates the long march to equality, Sotomayor and Jackson reject the possibility—indeed the desirability—of reaching a post-racial future. Sotomayor writes that “indifference to race is not an end in itself.” Jackson dismisses the majority’s optimism for “proceed[ing] in vain. If the colleges of this country are required to ignore a thing that matters, it will not just go away.” But what will make race in America less salient? Between colorblindness and treating race as a useful proxy for life experience, the choice seems imperfect but clear.

That is not the choice progressive institutions want to make. And just as water always finds its level, the overwhelming culture of support for racial discrimination in elite circles will find its expression in a new set of workarounds. In thrall to theories of systemic racism that hold that American institutions are biased against minorities to this day, universities are pre-committed to countering that bias with benevolent prejudices on their own. The Court can continue to police those prejudices, and there will surely be much more litigation before Harvard and UNC and their peers find it no longer worth resisting. But great a victory as this decision is for those of us who find racial classifications “odious” as the Court does, there is only so much that our law can accomplish. As long as restorative justice remains more compelling to elites than striving for colorblindness, the courts will be playing an expensive game of whack-a-mole with these intransigent social engineers. And while the Court appears to have provided an opening no wider than the eye of a needle, in its offhand conclusion it may have opened a loophole wider than the gates of Harvard Yard.