RUTHFULLY YOURS

After decades of vacillation, the Supreme Court of the United States has finally and firmly declared that the Constitution does not permit publicly funded universities to consider race, as such, in its admission processes. This is a decision that many, including this author, have been advocating since the 1970s, when my first law review article appeared, calling for affirmative action to be based on non-racial criteria and individual accomplishments.

The Supreme Court has been moving in this direction for some time now, but it has until now allowed loopholes the size of university football stadiums. These loopholes were exploited by universities to enforce quota systems whereby approximately the same percentage of minority applicants would be admitted every year. The results of these quotas impacted most heavily on one of the most discriminated against groups in American history – Asian Americans. The plaintiffs in the Harvard case were such Americans. It will be interesting to see how their numbers are affected by the decision.

Within two hours of the decision, Harvard released a statement and a video by its new president promising compliance, while also assuring a continued concern for diversity and other criteria which often serve as covers for racial quotas. It remains to be seen what Harvard and other schools believe constitutes compliance.

The majority decision, written by Chief Justice John Roberts, still allows for some consideration of race, so long as it is individualized. It permits universities to consider student essays that focus on an applicant’s race, so long as she or he relate their race to individual disadvantage, inspiration or other vague criteria. Harvard highlighted that part of the decision in its statement and will surely employ it to the greatest extent possible in order to maintain current percentages.

Even if universities manage to circumvent the Court’s primary holding that race alone cannot be considered, the 6-3 decision, written by the Court’s centrist leader, announces an important principle of Constitutional law that had been in doubt since the advent of race-based affirmative action. The opinion explains in detail why taking race, as such, into account – whether to advantage or disadvantage an applicant – is inconsistent with the history and policies underlying the 14th Amendment’s equal protection clause. The opinion rejected the argument that the post-Civil War Amendments were designed only to protect African Americans who had just emerged from the horrors of slavery. The opinion also rejected the argument that race alone can be taken into consideration in an effort to increase equality, diversity or other values that universities are entitled to preserve. It makes the important point that using race as such necessarily stereotypes and reduces individuals to being part of racial groups.

Although this decision was split along current conservative-liberal lines, with the court’s three liberals dissenting, it actually reflects traditional liberalism. Justice William Douglas, perhaps the most liberal justice in Supreme Court history, advocated precisely this race-neutral approach when affirmative action was first introduced. He was right then, and his liberal, colorblind approach has now been vindicated.

A simple example demonstrates why employing race as a criteria is both unconstitutional and immoral. As the Supreme Court correctly pointed out, admission to elite universities is a zero-sum game: for every student or group that is given preference, another is disadvantaged. So consider this zero-sum choice: a black applicant comes from a wealthy and well-educated family; his mother is a federal judge and his father runs a billion-dollar hedge fund; they both went to elite high schools and universities; they live in an affluent neighborhood with excellent schools; they receive top-notch healthcare (I know such people). A white applicant grew up in a rural Midwestern area; his mother died of a fentanyl overdose when he was 6; his father, an alcoholic, abandoned the family shortly before that; he went to mediocre public schools; but he struggled to achieve high grades and test scores. Before today’s decision, a publicly funded university could give preference to the privileged black applicant over the unprivileged white applicant, even if the white applicant had higher numbers and better recommendations. That is simply wrong. And now it is also illegal.

Under the Supreme Court’s new decision, all applicants must be treated as individuals. Of course, individuals belong to groups – racial, religious, gender, etc. These groups may have a profound influence on the individual and individual applicants are entitled to use their group association as part of their total profile. But universities are not allowed to make decisions based solely on skin color (which itself is often a continuum).

It will be fascinating to observe how universities respond to this decision. So stay tuned. The quest for a color-blind society based on Martin Luther King Jr’s dream is still a long way off. This decision brings us a giant step closer to achieving it.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus at Harvard Law School, and the author most recently of Get Trump: The Threat to Civil Liberties, Due Process, and Our Constitutional Rule of Law. He is the Jack Roth Charitable Foundation Fellow at Gatestone Institute, and is also the host of “The Dershow” podcast.