A Landmark for Racial Equality at the Supreme Court The Justices revive the plain meaning of the 14th Amendment in barring discrimination by race in admissions at Harvard and the University of North Carolina.
The Supreme Court had one of its finest hours on Thursday as it reaffirmed, in logical but forceful fashion, the bedrock American principle of equality under the law. In barring the use of race in college admissions, a six-Justice majority took a giant step back from the racial Balkanization that risks becoming set in institutional stone.
The two cases at issue were brought against Harvard, a private institution, and the public University of North Carolina by Students for Fair Admissions. They each used race to favor some applicants at the expense of others—most often Asian-Americans. In his majority opinion, Chief Justice John Roberts unequivocally declares their admissions processes to be unconstitutional under the 14th Amendment.
“The Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause,” he writes. “Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points. We have never permitted admissions programs to work in that way, and we will not do so today.”
It doesn’t get clearer than that, in what is the most significant opinion of the Chief’s career. “Eliminating racial discrimination means eliminating all of it,” he writes.
The Court’s opinion is especially bracing because it clears up a half-century of muddled Supreme Court rulings. In 1978 in Bakke, it opened the door to racial preferences in a plurality opinion by Justice Lewis Powell. When the issue inevitably came up again in Grutter v. Bollinger in 2003, the Court again fudged by declaring the narrow use of race kosher while adding that it should not be necessary in 25 years.
As the Chief writes, 20 years later the two schools told the Court they could foresee no end to using race to achieve diversity on campus. The dissent by Justice Sonia Sotomayor goes further in suggesting that “systemic inequities” may always require discrimination by race to counter discrimination by race.
But this view turns the plain meaning of the 14th Amendment on its head. It also leaves Justice Sotomayor in the odd position of arguing that, as the Chief puts it, the Court should tell “state actors when they have picked the right races to benefit.” He adds that while the Court ruled in its landmark Brown v. Board of Education (1954) that separate but equal is “inherently unequal,” Justice Sotomayor argues that “it depends.” Boom.
Thursday’s ruling is also notable for its concurrences. Justice Clarence Thomas navigates the long and fraught history of U.S. race and the law and why Justice John Harlan was right in his famous dissent in Plessy v. Ferguson that “our Constitution is color-blind, and neither knows nor tolerates classes among citizens.”
Justice Neil Gorsuch explains in a concurrence that Harvard and UNC both also violate Title VI of the Civil Rights Act of 1964. And in a telling passage, he writes that, in our increasingly diverse country, divisions by racial “classifications rest on incoherent stereotypes.”
He notes that in federal government classifications, “The ‘White’ category sweeps in anyone from ‘Europe, Asia west of India, and North Africa.’ That includes those of Welsh, Norwegian, Greek, Italian, Moroccan, Lebanese, Turkish, or Iranian descent. It embraces an Iraqi or Ukrainian refugee as much as a member of the British royal family.” The Court’s reaffirmation of equality under the law recognizes that it is the only way to run a diverse democracy without breeding more racial resentment.
President Biden denounced the decision, perhaps because he understands that its declaration of moral and legal principle jeopardizes his policies that divide by race. Corporate diversity and equity programs that divide and classify by race should also be on notice that they will face legal challenges. Harvard issued a statement suggesting that it would follow the law but that it sees an opening in the ruling that colleges may consider an applicant’s views on how race has affected his or her life.
The Chief’s opinion anticipates such evasion and notes that “a benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination” and the student must be treated “based on his or her experiences as an individual—not on the basis of race.” He adds for emphasis: “[W]hat cannot be done directly cannot be done indirectly.”
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No resistance can change the Court’s watershed declaration putting the country back in harmony with the principle of equal treatment at the heart of America’s founding promise. Notwithstanding the paean to equality in the Declaration of Independence, the Constitution was flawed owing to slavery. The 14th amendment was passed in 1866 to extend the protections of the law to Americans of all races.
The American people seem to agree with the Court’s view. Even in liberal states such as California and Washington, voters have rejected race-based admissions. Pew’s latest polls show three-quarters of the population oppose the use of race in college admissions, including majorities of Asian-Americans, Hispanics and black Americans.
The U.S. still has much work to do to achieve a truly color-blind society. Above all it needs to liberate a K-12 education system that traps too many minorities in failure factories. But the attempt to discriminate by race in college admissions to make up for that failure creates other problems and judges individuals not by their talent or character but the color of their skin. As the Chief underscores, “Our constitutional history does not tolerate that choice.”
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