By Robert
J. Delahunty and John Yoo
Friday,
June 30, 2023
In every
area of life, the Constitution and federal civil-rights laws forbid the
government from using race in making decisions. Government cannot use race to
distribute government funds, provide benefits, deploy police, run prisons or
hospitals, or even protect the nation’s security through “racial profiling.”
But the Court carved out one area from this fundamental colorblind principle.
In Grutter v. Bollinger (2003), the Supreme Court created a
special exception for admissions to colleges and universities. A majority
in Grutter accepted the claim that colleges could use racial
diversity as a proxy for intellectual diversity — which relies upon the
stereotyping assumption that a student’s mindset depends on his or her race.
Yesterday,
in Students for Fair Admissions v. Harvard, the Supreme Court
finally cut this cancer out of constitutional law. In a
monumental 6–3 opinion authored by Chief Justice John Roberts, the Court
invalidated the race-linked admissions programs maintained by Harvard and the
University of North Carolina. The Court affirmed the foundational
constitutional principle of equality under the law, regardless of race. If the
Court’s decision is respected and enforced, it is unlikely that any race-linked
college-admissions program in any public university or federally funded private
university would survive. It is quite likely that no faculty hiring or
promotion in which race played a part will be legally permissible. The one
sector in American society that had been exempt from legal rules banning the
use of race — higher education — will be forced to transform itself.
Do not
expect the universities to comply meekly with the Court’s ruling. Many of them
had been planning how to evade the expected decision even before it came down.
But even if massive resistance is likely (as it was with the Warren Court’s
desegregation orders in the 1950s), litigants will keep up the pressure on the
universities to purge their selection procedures of hidden, as well as overt,
racial preferences. And the Court has laid out clear and firm guidelines for
the lower courts to follow in adjudicating those cases. Racial preferences —
and any subterfuges designed to conceal such preferences — are forbidden.
Several
of the justices in the SFFA majority have long held racial
preferences in their crosshairs. “It is a sordid business, this divvying us up
by race,” Chief Justice John Roberts wrote in a 2007 case denying
race-conscious policies in K–12 schools. “The way to stop discrimination on the
basis of race is to stop discriminating on the basis of race.” The late Justice
Antonin Scalia had even harsher words for race-based affirmative action:
“Discrimination on the basis of race is illegal, immoral, unconstitutional,
inherently wrong, and destructive of democratic society.” And according to the
Court’s sharpest critic of racial preferences, Justice Clarence Thomas, “every
time the government places citizens on racial registers and makes race relevant
to the provision of burdens or benefits, it demeans us all.”
In
reaching its stunning conclusion, the Court did not expressly overturn any
existing precedent (though it certainly disemboweled Grutter).
Rather, it reaffirmed a standard of judicial review — “strict scrutiny” — for
racial classifications that traces back to its decisions in the 1940s and that
it has ostensibly applied since then. Strict scrutiny permits the use of race
only when a) the government has a “compelling” interest and b) nothing other
than the use of race provides a means to achieve that objective. Judged by that
standard, nearly all governmental reliance on race is invalid. (There might be
incidental exceptions, like keeping certain statistics, say, for public-health
purposes.) The strict-scrutiny standard, if honestly applied, ensures that our
Constitution is color-blind. Throughout the civil-rights era, judges and
lawyers would quip that strict scrutiny is strict in theory, but fatal in fact.
Beginning in the late 1970s, however, cases like Bakke, Grutter,
and Fisher v. University of Texas purportedly applied strict
scrutiny, but in fact used a much more lenient standard toward admissions
policies. Yesterday, the Court returned to the classic interpretation of strict
scrutiny.
The
colorblindness principle is a keystone of the American Constitution, as the
Court’s opinion, and the historic concurring opinion of Justice Clarence
Thomas, demonstrate at length. That principle found its roots in the
Declaration of Independence and the abolitionist movement, triumphed in the
Emancipation Proclamation and the Reconstruction amendments, and overcame
legalized segregation with Brown v. Board of Education and the
civil-rights movement. “The Constitution, as well as the Declaration of
Independence, and the sentiments of the founders of the Republic, give us a
platform broad enough, and strong enough, to support the most comprehensive
plans for the freedom and elevation of all the people of this country, without
regard to color, class, or clime,” Frederick Douglass declared in criticizing
the infamous Dred Scott decision. As Justice Harlan famously
wrote in dissent in Plessy v. Ferguson, which upheld racial
segregation: “Our constitution is colorblind, and neither knows nor tolerates
classes among citizens. In respect of civil rights, all citizens are equal
before the law.” Or, as Justice Scalia put it pithily in his Adarand
Contractors v. Peña concurrence, “in the eyes of government, we are
just one race here. It is American.”
The
decision to prohibit the universities’ use of race will, as a matter of
constitutional law, mark the end of the Supreme Court’s misbegotten deviation
from colorblindness. The Court has steadily banned racial discrimination in
every other part of public life. In Brown v. Board of Education,
the Court began dismantling the pernicious government policy of segregated
schools. It recited arguments that pressed the “fundamental contention” that
“no State has any authority under the equal-protection clause of the Fourteenth
Amendment to use race as a factor in affording educational opportunities among
its citizens.” (Justice Thomas’s opinion repeatedly cites the government’s
brief in the Brown case, in which the Eisenhower
administration emphatically endorsed the colorblindness principle.) City
of Richmond v. Croson made clear that the 14th Amendment’s insistence
on colorblindness prohibited state and local governments from considering race
when spending money or awarding contracts. Justice Sandra Day O’Connor’s
opinion explained that racial preferences present the serious “danger that a
racial classification is merely the product of unthinking stereotypes or a form
of racial politics.” Then, in Adarand Constructors v. Peña, the
Court made it crystal clear that this bar also applied to the federal
government.
In
standing up for the colorblind Constitution yesterday, the Supreme Court has
finally closed the book on its own unfortunate history with race. In Dred
Scott v. Sanford (1857), the Court’s first effort to solve the
nation’s race problem proved a disaster. Chief Justice Roger Taney thought he
could head off a looming division between North and South by striking down the
Missouri Compromise, holding that blacks could never become U.S. citizens, and
forbidding congressional regulation of slavery in the territories. By departing
from the Constitution in the name of enlightened elite opinion, Taney only
hastened the coming of the Civil War.
The
Court disgraced itself again in its next major encounter with race, Plessy
v. Ferguson. Plessy upheld not just the concept of “separate but
equal” but also the right of governments to enact policies based on race,
thereby ushering in the Jim Crow era. In yet a third case, Korematsu,
the Court, despite adopting the strict-scrutiny standard, allowed the
internment of Japanese-American citizens during World War II because the
government assumed that their ethnicity indicated disloyalty.
The
Court sought to restore its reputation in Brown v. Board of Education,
which finally put an end to segregation in public schools. It undertook the
difficult work of uprooting de jure racism in area after area, from public
facilities to employment to government contracts. The elected branches also
sought to end official racism, with President Harry Truman desegregating the
military, President Dwight D. Eisenhower helping enforce Brown,
President John F. Kennedy prohibiting racial discrimination by government
contractors, and Congress enacting the Civil Rights Act of 1964 and the Voting
Rights Act of 1965.
Unfortunately,
however, the pursuit of racial equality and integration has mutated into a new
ideology of racial diversity. Both now and in the past, the Court has allowed
the use of race to remedy discrimination experienced by identifiable victims.
But in the context of higher education, where many minority applicants by the
1990s had neither suffered the direct effects of segregation nor been victims
of discrimination themselves, racial diversity became an end in itself.
Justice
Lewis F. Powell’s 1978 Bakke opinion defended racial diversity
as a way of promoting intellectual diversity in classroom discussion — a
laudable end aligned with the First-Amendment values of free speech and open
inquiry. But anyone familiar with American campuses today can see that free and
open debate is getting harder to find. Even liberal academics, like Yale Law
School dean Anthony Kronman in his The Assault on American Excellence (2019),
acknowledge and deplore the corrupting effects of the post-Bakke pursuit
of racial diversity for its own sake.
The Bakke Court
split 4–4 between the justices who would have upheld the constitutionality of a
quota for admission to a state medical school and four who would have struck it
down. Powell provided the decisive fifth vote, ruling that the school’s racial
set-aside was not constitutional but also upholding the “Harvard Plan” as a
model of constitutionally permissible racial preferences. Powell’s argument
pivoted on distinguishing a numerical “quota” from a “goal”: Race could be
considered as a “plus factor” in the admissions process because it would
contribute to creating greater “diversity” of opinion in the student body. It
was a harmless feature of admissions policy, like upgrading a candidate by a
notch for being a saxophone player. Powell erroneously maintained that all this
was compatible with strict-scrutiny. In Grutter, a majority of
the Court tracked Powell’s Bakke opinion, declared the
time-limited use of race in college admissions, and hoped that such preferences
would last no more than 25 years.
Ironically,
Harvard both provided the template for the racial preferences allowed
under Bakke and now ruled illegal under SFFA.
Nonetheless,
history suggests that even the clear holding in SFFA —
like Brown nearly 70 years ago — will be, to paraphrase
Churchill, not the beginning of the end, but the end of the beginning. Massive
resistance may arise from an entrenched educational bureaucracy that elevates
diversity above all other values, including excellence and merit. Here, just as
in Brown, parents and students — who overwhelmingly reject racial
preferences — will not be able to eliminate the use of skin color in one fell
swoop, but only after a series of cases across the nation.
Striking
down the admissions programs at Harvard and UNC is thus the easy part. Both
schools admitted that they use overt racial preferences. And the undisputed
factual record in both cases confirmed that racial preferences affected
admissions decisions. At Harvard, Asian-American applicants had lower
acceptance rates than did white students at every academic decile. An
Asian-American applicant at the fourth-lowest decile had less than a 1 percent
chance of being admitted, while an African-American applicant in the
fourth-lowest decile had a 12.8 percent chance. African Americans in that
fourth-lowest decile had the same chance of admission as an Asian-American
applicant in the top decile of applicants (12.7 percent). The numbers at UNC
were equally striking.
The
campaign to enforce the colorblindness principle will not end here. Many
(though by no means all) universities are as committed to using race in
admissions as ever. The history of resistance to Brown suggests
that universities will respond to a loss at the Supreme Court not by abandoning
their goal of an ideal racial balance but by covertly pursuing the same end
through less obvious means. Instead of openly considering skin color in
admissions, universities will shift gears to achieve the same racial
proportions through facially neutral proxies. Colleges will disguise their use
of race behind pretexts such as personality and leadership scores, as Harvard
tried to do. At the end of his opinion, Chief Justice Roberts tries to extinguish
some of these brush fires before they can start.
Racial
discrimination has been a deep stain on our country’s history and a betrayal of
its Founding principles. But the constitutional solution to overcoming racism
is not to perpetuate it under the guise of helping those once harmed. As
Justice Thomas concludes in his concurrence, we must share the “enduring hope
that this country will live up to its principles so clearly enunciated in the
Declaration of Independence and the Constitution of the United States: that
all men are created equal, are equal citizens, and must be treated equally
before the law.”
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