The Supreme Court Can Right a Grave Wrong in Upcoming Affirmative-Action Cases

‘T he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

So wrote Chief Justice John Roberts in a 2007 affirmative-action case. Roberts couldn’t get a majority to agree back then, as Justice Anthony Kennedy, the fifth vote in the case, refused to join that part of the opinion. But on Monday, the Supreme Court gave him another chance to get that fifth vote: The justices accepted and consolidated two affirmative-action cases — one regarding Harvard University and the other the University of North Carolina.

The Court already looks poised to make big decisions this term related to the Second Amendment and abortion. The Second Amendment decision could set the judicial trajectory for gun rights for the foreseeable future. The abortion case involves no less than the potential overturning of Roe v. Wade.

Now, as the Court is poised to consider whether these two university programs violate both the Constitution and the Civil Rights Act of 1964, government-sponsored affirmative action’s days could be numbered, as well.

Though the consolidated case focuses on two schools, the outcome will have implications for nearly every college in the country. The North Carolina case challenges whether public schools can use race-preference programs without violating the Fourteenth Amendment’s equal-protection clause. The Harvard case concerns whether federal funds can go to private schools with similar racial policies. The reasoning by which the court decides those questions likely will have ramifications for all government-run or -funded affirmative-action programs — educational and otherwise.

The Court could decide to take a modest route here, narrowing the extent that racial preferences can legally or constitutionally play into university decisions, but it should strongly resist the urge to do so. Instead, it should go big and declare government-run or -sponsored affirmative-action programs unconstitutional.

At stake is one of our country’s most fundamental principles: equality before the law. All laws make distinctions between persons and actions that unavoidably result in unequal treatment. Prohibitions on murder, for example, treat non-murderers quite differently than those who wrongfully kill. Speed laws leave those who drive at certain speeds alone while ticketing or even jailing others who go much faster.

Equality before the law, however, means we distinguish persons and actions in ways legitimate to justice and the purposes of government. Most laws treat persons according to what they do, not who they are. People choose to murder or to speed. Furthermore, dissuading murder and speeding contributes to the fundamental government responsibility to protect the right to life. These kinds of statutes also uphold the principle of equality before the law by securing protection from outside threats.

Distinctions based partly on persons, not just their actions, present a far more suspect set of laws. At times they can be legitimate. Limitations on blind persons’ driving vehicles, for example, still check the box of public safety. But distinctions based on race carry special cause for concern. First, one is hard-pressed to find legitimate reasons to treat people differently based on race. Indeed, the principle of equality before the law is grounded in a deeper, broader one: the profound, universal principle that all men are created equal. This human equality serves as the grounds for common citizenship. Equal laws stand on this foundation of equal humanity and equal membership in the political community.

Legal distinctions based on race always threaten to undermine these principles. They divide and distinguish persons by the color of their skin, an inherent trait that is entirely beside the point of humanity, citizenship, and just law. And in so doing, they legally make uncommon who should be common, unequal who should be equal.

Second, our history of slavery and legal segregation shows that we have failed in particular to live up to our principle of legal equality where race is concerned. Removing those relics of barbarism took a bloody war and another century of unfulfilled promises. Many who argue for affirmative action invoke this same sad history — since we spent centuries discriminating against persons based on their race, their argument goes, we now should seek to remedy that past by helping people on the same basis. Yet this both misunderstands the principle of legal equality and demonstrates a naïve overconfidence that we won’t repeat some version of our ancestors’ past wrongs.

Affirmative-action programs most certainly do not rise to the level of chattel slavery. But they do repeat the mistake of denying and dividing our common humanity and citizenship before the law. They undermine the principle of equality that is so essential to who we are as Americans.

So now, at long last, the Supreme Court should give Roberts that fifth vote. It should take this opportunity to get the American government out of the race-preference business. For equality’s sake, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”