An End to Racial Preferences at Last? By John Yoo & James C. Phillips
The Supreme Court could be ready to rule that racial discrimination is illegal, even if it is purportedly done for a good cause.
Editor’s Note: The following is the sixth in a series of articles in which Mr. Yoo and Mr. Phillips lay out a course of constitutional restoration, pointing out areas where the Supreme Court has driven the Constitution off its rails and the ways the current Court can put it back on track. The first entry is available here, the second here, the third here, the fourth here, and the fifth here.
America has a race problem. It has always had a race problem. Slavery, as many have observed, is America’s original sin. The challenge that will confront the new Roberts Court is how far it will allow government to make amends for that sin, while preventing a new elite of social engineers from jury-rigging the right racial balances — all in the name of a racial diversity that has suddenly became an end of a just society, rather than merely a means. As with its passages on religion, the Second Amendment, or the role of the courts, the Constitution’s command is relatively clear. It is the Court’s past failures to live up to principle that has kept the issue in doubt, but the confirmation of Justice Brett Kavanaugh may finally put it to rest.
More than 150 years after the end of slavery, 60 years after the end of public-school segregation, and two years after America’s first black president left the Oval Office, accusations of racism fill our airwaves and screens. Democrats fresh off a solid midterm victory in Congress still claim that the suppression of minority voting cost them governorships and Senate seats, despite voter turnout that reached heights not seen since 1914. On the other hand, those same Democrats argue that governments should use racial data to draw voter districts and hand out government contracts, and argue that state and local police harbor such racial animus against minorities as to shoot them at high rates.
Meanwhile, Asian students have uncovered evidence that Harvard University has used ridiculous stereotypes to engineer the right racial balances in its admissions process. As a recent lawsuit against the Ivy League school has revealed, Asian Americans consistently make up just 19 percent of the student body, despite an increasing percentage of Asian-American college students nationwide. Asians score higher than any other group on academic criteria and extracurricular activities. If academic merit alone determined admissions, the university admitted that Asians would make up 43 percent of the student body, about the same level reached at the University of California at Berkeley after California ended affirmative action by popular initiative.
So where are Asians getting dinged? Personality. To avoid having too many Asians, Harvard has recycled a practice that Ivy League schools applied to Jews in the first half of the 20th century. According to Harvard admissions, Asians trail far behind their peers in areas such as humor, sensitivity, creativity, grit, and leadership. (Harvard’s judgment may come as news to our military, which plans strategy against 1 billion Chinese who currently present the greatest long-term challenge to American hegemony, or to our business leaders, who see the Chinese and 1 billion Indians rising into economic powerhouses — both the products of civilizations that existed when Europeans thought rocks made ideal weapons.) Apparently only those working in college admissions offices can discern this race-wide personality deficit.
Harvard’s racial and ethnic balancing is the poisonous fruit of the Supreme Court’s jurisprudence on race and affirmative action. And higher education isn’t the only place where racism rears its ugly head. Take the drawing of districts for congressional elections, especially the practice of gerrymandering, whereby legislatures create electoral maps to maximize their party’s advantages. The Supreme Court has injected itself into this most political of activities, one that the Constitution explicitly assigns to state legislatures and whose politically partisan use is as old as the Constitution itself (the word “gerrymander” itself comes from Elbridge Gerry’s drawing of a Massachusetts state-senate district that resembled a salamander; Gerry was a signer of the Declaration of Independence, a delegate to the Constitutional Convention, and a contributor to the first Judiciary Act and the Bill of Rights). Historically, Southern state legislatures used gerrymandering to reduce the voting strength of racial minorities, particularly African Americans. But now the Supreme Court has allowed the federal government and states to consider race in drawing voting districts designed to maximize the voting strengths of racial groups.
Throughout our nation’s sorry history on race, the Supreme Court has more often than not served as enabler. In Dred Scott v. Sandford (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 citizens, and forbidding congressional regulation of slavery in the territories. By departing from the Constitution in the name of enlightened policymaking, Chief Justice Taney only further enflamed sectional divisions, spurred the rise of the Republican party, and hardened abolitionists and slaveholders in their positions. The Court disgraced itself again in its next major encounter with race, Plessy v. Ferguson (1896), when it notoriously upheld not just the concept of “separate but equal” but the right of governments to enact policies based on race. By denying the 14th Amendment’s ban on race-conscious policies, the Court helped usher in the Jim Crow era. In yet a third case, Korematsu (1944), the WWII Court allowed the internment of Japanese-American citizens because the government assumed their ethnicity indicated disloyalty.
The Court sought to restore its reputation in Brown v. Board of Education (1954), which finally put an end to segregation in public schools. It then undertook the difficult work of uprooting de jure racism in area after area, from public facilities to employment to government contracts. To their credit, the elected branches helped promote the end of official racism, with President Harry S. Truman desegregating the military, President Dwight D. Eisenhower helping desegregate public schools, President John F. Kennedy prohibiting racial segregation by government contractors, and Congress enacting the foundational Civil Rights Act of 1964 and the Voting Rights Act of 1965.
Unfortunately, however, the American instinct to make up for past sins mutated into a new ideology of racial diversity for its own sake. In the past, the Court has sensibly allowed the use of race to remedy actual discrimination. But in the hands of higher education, where many minority applicants by the 1990s had not suffered the direct effects of segregation, racial diversity became an end in itself. Faced with the zero-sum enterprise of having to allocate a limited number of seats, colleges and universities followed admissions priorities that sought to increase the number of students of some races (usually blacks and Hispanics) at the expense of others (usually whites and Asians). It should come as no surprise that universities became the vanguard for a new racial spoils system, when its administrators and many scholars replaced the search for truth with Marxist ideologies that interpret reality as the product of economic-class, and now racial, struggles.
Like universities, and then the media and Hollywood, and even now corporations and the military, the Supreme Court accepted the new racism. In Regents of University of California v. Bakke (1978), a fractured Court struck down the University of California’s use of actual quotas by race but allowed the consideration of race among other factors in admissions. While hard quotas became illegal, quiet ones took hold. Universities became expert at hitting the racial numbers they want by manipulating soft, subjective criteria such as “personality,” as the Harvard litigation revealed.
Although Republicans have appointed the majority of Supreme Court appointees in the years since, the Court has stuck to its guns. In Grutter v. Bollinger (2003), a liberal majority led by Justice Sandra Day O’Connor upheld the University of Michigan Law School’s use of race in admissions. In allowing the official use of race for the first time since the Japanese internment cases, the Court showed it had swallowed the new racism hook, line, and sinker. Justice O’Connor wrote that the Constitution “does not prohibit the law school’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.” Now, instead of remedying past discrimination, racial-diversity policies were good in their own right. Racial diversity, Justice O’Connor argued, produced the wide spread of ideologies and backgrounds that advanced the quality of education.
Of course, this theory would justify diversity in any number of other contexts. Governments can claim they need racial diversity to have the ideological diversity for better policy debates; corporations will argue they need racial diversity to understand racial groups so as to sell to them better; medical schools will argue they need diversity to treat racial communities more effectively. But even worse, it only reinforced the very racial stereotypes upon which past racial discrimination had built. The Court assumes that racial diversity equals ideological diversity; that could only be true if the Court believes that racial groups hold uniform views. But this is offensive as well as unconstitutional. Races are not homogeneous in their views, their culture, or their experience. To believe otherwise is racist.
The Roberts Court can finally put an end to the tangled relationship between our government and race. As Chief Justice Roberts observed in a 2007 case limiting racial-diversity plans in elementary and secondary schools: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Justice Kavanaugh’s confirmation can make all the difference. Justices Clarence Thomas and Samuel Alito have joined Roberts in his stalwart opposition to race-based policies, and Justice Gorsuch’s affinity for natural law should make him a fellow traveler. But after Justice O’Connor’s retirement, Justice Anthony Kennedy became the crucial fifth vote to uphold affirmative action, as he did in Fisher v. University of Texas (2016). With Justice Kavanaugh’s replacement of Justice Kennedy, the Roberts Court can now stop this “sordid business” of “divvying us up by race,” as Chief Justice Roberts has written.
Favoring a particular race — an immutable characteristic beyond one’s control — hurts both the favored and the disfavored. For the favored, there are two harms. One is that a racial preference can create doubt as to whether the beneficiary is really good enough to succeed on their own merits — “a badge of inferiority,” as Justice Thomas has called it. The other harm, sadly, as the work of Richard Sander has shown, is that putting someone in an academic environment they would not have gotten into on pure merit often sets them up for failure. It doesn’t matter what the characteristic is that causes the boost — gender, race, sexual orientation, religion, age, or anything else — the ensuing mismatch often harms the very group the affirmative action was meant to help. As for the disfavored groups, affirmative action stokes racial resentment. That will prolong, rather than overcome, any lingering racism.
But even if the consequences of racial preferences were exactly opposite, the Roberts Court would still have to strike them down because of the 14th Amendment. Enacted during Reconstruction, the amendment bolstered the constitutional support for federal civil-rights laws that required states to treat the new freedmen as equal citizens. The Court has based most of its decisions forbidding governmental use of race on the equal-protection clause: “nor [shall any State] deny to any person within its jurisdiction the equal protection of the laws.” Textually, we think that phrase speaks more directly to executive-branch refusal to enforce laws on the books equally without regard to race. If the Court were to restore the original understanding of the 14th Amendment, it should root the prohibition on race more directly in the privileges and immunities clause, which states that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” As we have argued earlier, that clause recognizes a package of individual rights that inheres in each American; one of those is the right to be treated the same by the government regardless of skin color.
But regardless of whether the equal-protection clause or the privileges and immunities clause supplies the textual basis, the Constitution establishes the fundamental principle that the government cannot discriminate on the basis of skin color. “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens,” Justice John Harlan famously declared in his Plessy dissent.
Amazingly, defenders of affirmative action object. They want to read the Constitution to not be color-blind. Despite the government’s sorry history on race, they now trust the state to hand out benefits to favored races and inflict harms on its past racial opponents. They also argue that conservatives are hypocrites for supporting judicial activism that overrules the judgment of federal and state governments in favor of racial preference. Some supporters of racial preferences even rely on historical examples of segregation to justify their stance now — for example, they point out that the congressional framers of the 14th Amendment allowed segregation in the public schools in the District of Columbia. As Justice Thomas has argued, supporters of racial preferences often put forth theories similar to segregationists. Yet there is no racial-paternalism exception to the equal-protection clause: benign prejudice is just as unconstitutional as hostile prejudice.
Perhaps sensing the internal contradiction of today’s new racism, Justice O’Connor declared in Grutter that racial preferences should prove only temporary; affirmative action in college admissions could last for only another 25 years. But this makes no sense. Either something is constitutional or it is not. The passage of time does not cure unconstitutionality. There is no reason why, under O’Connor’s theory, racial diversity will no longer provide intellectual diversity in ten years if it does so now.
So what is to be done? Simply prohibit the government from considering race, at all. That’s what the Constitution demands. The equal-protection clause makes no exception for beneficial discrimination. One cannot pick up the stick of “helpful” discrimination without harming someone. And American history sadly shows that government has discriminated invidiously against minorities while facially pretending to be helping them.
Affirmative action is unconstitutional. Full stop. That doesn’t mean that legislatures cannot craft solutions that will have the result of helping minority students succeed or making business more competitive; it just means those solutions cannot be based on race. Nothing in the Constitution, for example, prohibits institutions from seeking diversity based on poverty or skills. It just cannot use race. Even if the Court must use its power of judicial review to override the considered judgment of the elected branches of government, this is what the Supreme Court’s power is for: to refuse to carry into effect the commands of the other branches that violate the higher law of the Constitution. That is not activism; it is constitutional fidelity.
If the Roberts Court does not want to return to the 14th Amendment’s original meaning, it could at least faithfully apply its strict-scrutiny test to racial classifications. Scholars once observed that strict scrutiny was “strict in theory, fatal in fact,” because it requires a “compelling interest” for the government program that is “narrowly tailored” to achieve that end. Until Grutter, the only government interest that qualified was military necessity in wartime, and even that was questionable (due to its origin in Korematsu). It seems obviously wrong that achieving racial diversity is as important a government interest as prevailing in wartime. And to the extent the Court wants to keep strict scrutiny for racial classifications, it must enforce it vigorously against racial discrimination that is allegedly beneficial as well as discrimination that is harmful.
There is no doubt that there are despicable aspects of our history when it comes to race. But the constitutional solution to correcting our past is not to perpetuate it under the guise of helping those once harmed. After all, as Justice Thomas has noted, the Constitution protects individual, not group rights. Just because a particular racial group once suffered discrimination does not entitle an individual who has not actually suffered discrimination to claim a benefit based on race.
Ending judicial approval of racial preferences won’t cure all of the nation’s tensions on race. But at the very least, it will move the conversation out of the courts and into society, where it belongs.
We can do better on race in this country. We must do better. We’ve come a long way, though we’re not there yet. But we cannot hijack the Constitution in ways that are antithetical to its meaning. With Kavanaugh, the Court can reverse its mistakes by making all racial discrimination constitutionally taboo, as the 14th Amendment requires.
John Yoo is the Emanuel S. Heller Professor of Law at the University of California, Berkeley, a visiting scholar at the American Enterprise Institute, and a visiting fellow at the Hoover Institution at Stanford University. James C. Phillips is an attorney in private practice and a non-resident fellow at Stanford Law School’s Constitutional Law Center.
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