The Struggle for Legal Equality Isn’t Over Yet

T he battle lines are drawn. After the United States Supreme Court declared affirmative action in college admissions illegal last month, politicians and university presidents vowed to make the decision a dead letter. Taking them at their word, “diversity” — that is, favoring applicants based on race — will be preserved by any means necessary.

President Biden pledged that his administration would find a “new path” that “protects diversity.” Harvard’s president Lawrence Bacow promised to marshal the “talent and expertise of our Harvard community” to figure out a way to “preserve” an admission system that results in racial diversity. And the Association of American Universities declared that America’s top 71 research institutions will continue to pursue “diversity throughout the academic enterprise.”

In other words, our universities have ironically recalled George Wallace, essentially declaring, “Racialism now, racialism tomorrow, racialism forever.” But to succeed, they must find a way to subvert the law. Absent direct defiance (and schools may try to hide a fair amount of that), the answer is finding a racial proxy — something that isn’t race but approximates the same result.

There are a few theories on how to do this. Temple University professor Timothy Welbeck suggests simply using geography as a proxy. He says that targeting locations where minorities are “historically housed” can result in racial diversity; in other words, “We know where you live.” Other academics have suggested using family wealth (net assets minus debts) as a proxy for race. Moreover, some programs already use specific eligibility requirements to achieve diversity without explicitly using race. With the express goal of increasing racial diversity, the State of Texas, for example, created its “Top 10 Percent Plan,” according to which each public university in the state must admit any student who graduated in the top 10 percent of his graduating classes.

And President Biden’s own student-loan-forgiveness program — recently struck down — was constructed in such a way as to “disproportionately benefit Black borrowers.” Still other programs will focus on an individual’s history of overcoming hardship, likely resulting in a sympathy derby with claimed racial hardships being assessed as harder than all others.

It is unclear whether any of this will create the racial mosaic that universities want. And while schools can certainly consider a student’s socio-economic circumstances, they had better be careful. Admissions offices that manipulate these criteria to get a particular racial balance will wind up back in court. Having a racial motivation is just as illegal as imposing an explicit racial qualification. Chief Justice John Roberts presaged the search for a racial proxy in his opinion, warning that universities may not “simply establish through application essays or other means the regime we hold unlawful today.”

Roberts’s warning is not new. Using an otherwise race-neutral policy for the express purpose of achieving a particular racial result has been illegal for decades. In 1971, a developer claimed that the City of Arlington Heights, Ill., used its race-neutral zoning ordinance to discriminate based on race. In deciding that case, the Supreme Court explained that a policy enacted with a discriminatory motivation or intent would be unconstitutional, even it was neutral on its face.

Figuring out whether a particular policy was constructed with a “racial motivation” will be challenging and expensive to prove. Discovery will be taken; trials will be had. In Village of Arlington Heights v. Metropolitan Housing Development, decided in 1977, the Court suggested that a policy’s history, statements by board members, employees, or officials, meeting minutes, and reports can be evidence of a racial motivation. The Court said that policy-makers “might be called to the stand at trial to testify concerning the purposes of the official action.” Criteria that have a disproportionate impact and lack any nonracial purpose (or which are inconsistently applied) may be offered as evidence of discriminatory purpose. For example, a school that targets low-income zip codes with high minority populations while making no effort to enroll low-income white students may find itself in difficulty. If black applicants with a hardship are admitted at a much higher rate than, say, Indian immigrants or whites from Appalachia, an inference of racial motivation may arise.

These cases will be challenging, but they will be brought. The purveyors of affirmative action can run, but they can’t hide. If a university, government, or business adopts a policy vaguely aimed at “diversity” or “affirmative action,” then plaintiffs — armed with the Court’s reinvigorated equal-protection jurisprudence — will have the opportunity to charge that the policy is motivated by race. Such a lawsuit could put college presidents, lawmakers, and CEOs in the uncomfortable position of explaining, under oath, their motivation and whether their decision-making process is race-infected. If so, federal law imposes significant punishments for racial discrimination: compensatory and punitive damages, costs, and attorney fees.

All this is unnecessary, though. America is a color-blind country dedicated to the proposition that all of us are created equal. Abiding by this simple principle, in the end, is the easier route. But given their statements, the “diversity” advocates are digging in, and it may take years of expensive litigation and financial pain to impose the equality that’s demanded by law. The victims of the discriminatory “diversity, equity, and inclusion” regime must likewise dig in and be bold and patient. The battle for equality won’t be quick, easy, or inexpensive. But it will be won.

Rick Esenberg is president and general counsel at the Wisconsin Institute for Law & Liberty, where Dan Lennington is a deputy counsel.