Discrimination based on race is in the air—literally.

The Washington Post reports that researchers have “found that minorities are on average exposed to 38 percent higher levels of outdoor NO2 (nitrogen dioxide) than whites in the communities where they live, based on demographic data from the 2000 census.” Translation: Even the air minorities breathe discriminates against them.

Racism is figuratively in the air as well. Notably at the Supreme Court. By a decisive 6–2 vote, the justices recently upheld the constitutionality of a Michigan referendum that bans racial preferences in college admissions.

See also: What States Can Do to Stop Racial Discrimination

The decision was in keeping with a series of preference cases the court has heard recently. Starting in 2007, Chief Justice John Roberts wrote: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” and the most recent decision is certainly a step in that direction.

Associate Justice Sonia Sotomayor is quite upset with that direction. “The way to stop discrimination on the basis of race,” she wrote in a rambling, 58-page dissent, “is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”

As Justice Antonin Scalia noted in his concurrence, it would be odd indeed if the Equal Protection Clause of the Fourteenth Amendment—a clause that prohibits government discrimination on the basis of race—would block Michigan voters from adopting a law that does just that. Yet this is precisely the reinterpretation of the Equal Protection Clause that Justice Sotomayor advanced.

As Heritage’s Mike Gonzalez writes at the New York Post, “Immigrants and their children simply have no claim on affirmative action—if anyone does. To the contrary, these policies hurt their intended beneficiaries” by imposing the soft bigotry of low expectations and by degrading the value of the education earned by minorities.

The air may indeed discriminate. But the Constitution doesn’t.