If the United States Supreme Court exists for any moral purpose beyond simply interpreting the laws, it is to carry out the motto etched in stone on the courthouse itself: “Equal Justice Under Law.” That inscription was approved in 1932 by Chief Justice Charles Evans Hughes, and its promise has been a standing challenge to the Court ever since. For most of American history, the greatest obstacle to equal justice under law has been state-sanctioned discrimination on the basis of race. Today, at long last, the Court has said to such discrimination: No more.
In a pair of cases, Students for Fair Admissions Inc. v. President & Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina, the Court banned the use of race as a preferential factor in college admissions. The decision was 6–3. The shame is that it was not unanimous. “Separate but equal is inherently unequal,” said the majority, quoting Brown v. Board of Education. “It depends, says the dissent.”
Because the Court has treated Title VI of the Civil Rights Act of 1964 as prohibiting any discrimination that would be unlawful under the Equal Protection Clause of the 14th Amendment, the Court found that even private colleges such as Harvard must comply with the strictures of equal protection. Because the Civil Rights Act also applies to public and private institutions alike and its language is explicit, the Court might have been more prudent to decide the case on statutory grounds. But its outcome is surely consistent with the letter of the Civil Rights Act and, at a minimum, the spirit of the 14th Amendment.
In any event, the Court considered the two cases in a single opinion written by Chief Justice John Roberts. Justice Ketanji Brown Jackson, who sat on the Harvard Board of Overseers throughout the period covered by the lawsuit and through most of the common defense of the two cases, was “recused” yet wrote a lengthy dissent on the single legal issue governing both cases. Also not recused was Justice Elena Kagan, who as dean of Harvard Law School raised nearly half a billion dollars for the university. Don’t hold your breath waiting for ethical complaints about any of this.
The racial preferences used by Harvard and the University of North Carolina were more pervasive and dramatic than was publicly admitted until dragged out of the universities in litigation. They reflected not just a heavy thumb on the scales in favor of African-American students in particular, but a significant bias against Asian Americans — a group composed heavily of first- and second-generation immigrants and which has faced its own legacy of historical discrimination in America.
This is not the first time that colleges have discriminated against a minority group for being too successful: Elite colleges once had maximum quotas of Jewish students in order to avoid becoming “too” Jewish, just as they seem to fear becoming too Asian today. This is un-American. Roberts aptly found the pretense that racial preferences harm nobody “hard to take seriously. College admissions are zero-sum. A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.”
Defenders of racial preferences remain unable to get their stories straight. The universities, and the dissents by Justices Jackson and Sonia Sotomayor, argued that race was not really a factor in “holistic” admissions processes yet simultaneously charged that doing away with race-conscious admissions would exacerbate racial disparities, unsettle long-held expectations, and even cost lives by depriving the country of black doctors. The majority properly called them out on this inconsistency.
Roberts noted that Harvard considers race at every stage from the initial rating of an application to a list of categories to consider before dropping a marginal applicant at the last cut, and that this results in a system where “an African American student in the fourth lowest academic decile has a higher chance of admission . . . than an Asian American in the top decile” and “black applicants in the top four academic deciles are between four and ten times more likely to be admitted to Harvard than Asian applicants in those deciles.” The graphic produced by the plaintiffs shows this disparity dramatically:
“For all the talk of holistic and contextual judgments,” Roberts observed, “the racial preferences at issue here in fact operate like clockwork” in setting a designated share of the admitting class that must be of a particular race.
The chief justice summed up the law’s great promise to the American people: “Eliminating racial discrimination means eliminating all of it.” He quoted the words of Justice Lewis Powell in 1978: “The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. . . . If both are not accorded the same protection, then it is not equal.” But, unlike Powell, the majority meant it, and unlike Justice Sandra Day O’Connor’s Grutter v. Bollinger opinion in 2003, it did not set a temporary rule with a timed expiration date. Today’s ruling is meant for all times and for all Americans, even those whose ancestors have yet to reach our shores.
Two justifications are advanced for racial preferences, and their defenders switch between them based upon the audience. The main rhetorical argument among journalists and activists is that preferences are a form of reparations for past discrimination. Tellingly, neither of the universities defended their systems on this basis, and there are good reasons why: The Court has long held that race discrimination can be used as a remedy for other, past discrimination only if it is very narrowly tailored to harms suffered by particular people.
Ignoring the Court’s precedents and the arguments advanced by the parties, Justice Jackson (in a dissent joined by Sotomayor and Kagan) nonetheless insisted that the nation’s “legacy of discrimination” requires the continuance of racial preferences until . . . when? Jackson says only that history “can be heard forever” and that “race matters to the very concept of who ‘merits’ admission.” She implies that, at a minimum, race should be considered so long as any disparities of any kind are observable between black and white Americans (conveniently ignoring that not everyone in America is in one of these two groups). Forever, it would be.
While disparities among racial groups persist in America today — and while history surely plays a role in those gaps — we are a long way from 1866, when the great majority of Americans were white and when nearly 90 percent of black Americans were recently freed slaves, most of them penniless and illiterate through no fault of their own. The nation today is more racially heterogenous, and an increasing number of Americans are of racially mixed heritage. Black Americans are far from being uniformly poor and dispossessed, and preferences in admission to elite colleges disproportionately benefit black Americans from wealthier backgrounds compared with those who grew up in poverty. If taking race off the table prods colleges into striving harder to serve the poor and working class directly, rather than pretending that race is the same thing as poverty, that is all to the good.
The universities argue that “diversity” makes race discrimination necessary. But their interest in diversity is selective: Colleges typically do not give weight to ensuring the representation of religious, ideological, or non-racial ethnic diversity, among other things. The racial categories are themselves arbitrary. Roberts observed that the colleges do not know how to categorize Americans of Arab or Persian origin, “Hispanic” is “undefined” and could be satisfied by admitting only Mexican-Americans, and “by grouping together all Asian students, [they] are apparently uninterested in whether South Asian or East Asian students are adequately represented, so long as there is enough of one to compensate for a lack of the other.” The racial categories are incoherent because racial thinking is necessarily incoherent.
Moreover, merely incanting “diversity” should not immunize all race discrimination from scrutiny. Yet, as Roberts rightly observed, courts have no competence to decide how much diversity is enough. Asking them to just trust the proponents of race discrimination and abandon all judicial review of educational “experts” would end the project the Court began in Brown. This would, as Roberts noted, not only be “folly” in light of historical experience; it would require the Court to abdicate its judicial duty. It would also make it impossible to ever determine when preferences are no longer necessary: “There is no reason to believe that respondents will—even acting in good faith—comply with the Equal Protection Clause any time soon.”
Liberals and progressives will thunder at this decision, but if the consistent finding of polls and popular referenda on this issue over the years is any indication, its outcome will be popular with the American people.
Nobody pretends that the nation’s colleges will give up looking for ways to quietly discriminate on the basis of race in order to benefit favored groups at the expense of disfavored groups. The ideology of doing so is too entrenched to permit any response but massive resistance. The Court, unwisely in our view, creates an incentive for this by noting that applicants could still discuss their race in their application essays, although it tries to head off mischief by warning universities not to use those essays as a license to continue discriminating. But no matter how the colleges react, at least discrimination on the basis of race will gain no formal sanction under American law. That is progress.