Commentary on Political Economy

Friday 30 June 2023



The Supreme Court Turns ‘Equal Protection’ Upside Down

An illustration of graduation hat placed high up on a pedestal. A ladder with broken and missing steps is leaning on the pedestal.
Credit...Illustration by Rebecca Chew/The New York Times
An illustration of graduation hat placed high up on a pedestal. A ladder with broken and missing steps is leaning on the pedestal.

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In striking down affirmative action in higher education on Thursday, the Supreme Court’s conservative majority said it had to do so because the Constitution forbids any form of racial distinction. With a single opinion, the justices overturned decades of precedents that upheld race-conscious admissions policies as consistent with the 14th Amendment’s equal protection clause and ignored the reality of modern America, where prejudice and racism endure.

As Justice Sonia Sotomayor wrote in dissent, the decision cements “a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.”

The result of Thursday’s decision means the end of a system that provided decades of opportunity for thousands of students who might otherwise have been turned away from some of the nation’s biggest colleges and universities. The effects will be felt nationwide, and soon. In states that have already banned affirmative action in higher education, the percentage of Black students has dropped, in some cases dramatically. Black enrollment at the University of Michigan was 4 percent in 2021, down from 7 percent in 2006 before Michigan voters prohibited the consideration of race in college admissions. The story is similar in California, despite that state’s intensive efforts to recruit more minority students by other means.

That this ruling has been long anticipated does not change the context in which it was handed down. For the second time in just over a year, the Supreme Court tossed out a longstanding precedent intended, however imperfectly, to expand basic rights and freedoms to a large group of Americans who had suffered under a legal system that treated them as second-class citizens. Last year it was women seeking the constitutional right to have an abortion; this year it is chiefly Black and Latino students who want a shot at the economic opportunity that can come from a college degree.

Why now? Nothing has changed in either case — not public opinion, not the underlying facts, not even the behavior of the two schools targeted in the court’s decision, which were both following the guidelines the Supreme Court set out in a previous ruling on affirmative action in 2003.

Only one thing has changed: the court’s membership. With their supermajority now firmly in charge, the Republican-appointed justices have had free rein to upend swaths of American law in order to achieve long-held goals of the conservative movement. Ending any form of racial consideration has long been high on that list, part of a continuing effort to pretend that racial inequality no longer exists — what Justice Ketanji Brown Jackson described in her dissent as a “let-them-eat-cake obliviousness” to the role of race in daily life.

It has been the special project of an indefatigable right-wing activist named Edward Blum, who for years has coordinated the legal challenges to affirmative action, including the current lawsuits, which targeted race-conscious admissions practices at Harvard University and the University of North Carolina.

Thursday’s ruling, written by Chief Justice John Roberts and joined by all of the Republican-appointed justices, takes a long time to make a simple — and simplistic — point: There is no real difference between the centuries of racial discrimination against Black people and targeted race-conscious efforts to help Black people. Both are equally bad, in this view.

The chief justice has long adhered to this view of race. As he wrote in a 2007 case striking down race-conscious state programs aimed at integrating public schools, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” It was a memorable line, because it flattered the commonly held belief that any race-based discrimination is not just wrong but unconstitutional.

The problem is that, as a matter of history, it’s not true. The 14th Amendment, ratified in the aftermath of the Civil War, was expressly intended to allow for race-conscious legislation, as Justice Sotomayor noted emphatically on Thursday. The same Congress that passed the amendment enacted several such laws, including the Freedmen’s Bureau Acts, which helped former slaves secure housing, food, jobs and education.

The bureau was an obvious and essential measure to remedy at least some of the harm that slavery inflicted on Black Americans. The first affirmative-action programs, a century later, had the same goal, only then it was necessary to address the decades of state-sanctioned discrimination against Black people that followed Reconstruction, and that continued to impose unique and specific hurdles to their ability to fully join American society. As President Lyndon Johnson said in a 1965 commencement speech at Howard University, “You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘You are free to compete with all the others,’ and still justly believe that you have been completely fair.”

And yet despite the success of affirmative action programs in raising minority enrollment, or more likely because of it, the pushback was immediate. Allan Bakke, a white man rejected by the medical school at the University of California, Davis, said he was the victim of racial discrimination and filed a lawsuit. In a complicated split opinion in the 1978 Bakke case, the Supreme Court allowed race to be considered in college admissions, but only for the purpose of increasing diversity on campus, not as a way to alleviate the long-term effects of discrimination.

The focus on diversity was an orchestrated compromise meant to win over the court’s key swing justice, Lewis Powell. It worked, and yet at the same time it set the stage for affirmative action’s ultimate demise. By limiting it to a hard-to-define concept like diversity, the court opened the door to endless challenges. Some justices have asked, for example, why certain types of diversity mattered more than others. Why only racial diversity and not religious or political diversity?

But diversity — whether on campus, in business, or in government and society at large — remains a vital goal for any institution, and it will now be more difficult to achieve. The word is not a “trendy slogan,” as Justice Jackson wrote in her dissent. Diversifying medical schools by opening up the profession to Black physicians can save lives, she notes. Black infants, for example, are more likely to survive under the care of a Black doctor. Diversity also expands economic benefits and social understanding. A diverse student body, she wrote, means that “students of every race will come to have a greater appreciation and understanding of civic virtue, democratic values, and our country’s commitment to equality.”

What’s especially interesting in Thursday’s opinions is not where the justices disagree but where they agree: The Equal Protection Clause allows for race-conscious programs, as long as they are narrowly tailored to meet a compelling government interest. In fact, the opinion explicitly permits affirmative action in military academies, in what seems to be an acknowledgment that diversity in the armed forces remains a national priority. The real debate, then, is over exactly where to draw that line. What sort of harm is sufficiently clear and traceable to permit an exception to the 14th Amendment, and what isn’t? For nearly half a century, the court drew the line to permit affirmative action in higher education. On Thursday, it moved that line.

None of this is to deny the legitimate critique of affirmative action as it functions today. Unlike abortion rights, most Americans oppose race-based admissions programs for colleges, polls show. These programs have, for instance, been insufficient for addressing economic disparities, which are a crippling barrier to millions of Americans of all colors.

This and other shortcomings require their own solutions. This ruling against Harvard and University of North Carolina should be a call to action, for private and state universities alike, to create new paths to ensure that qualified students can find opportunity on their campuses. More evidence is needed around whether the most commonly proposed alternatives — giving a leg up to students from lower socioeconomic groups, for example, or admitting the top 10 percent of students from each high school in a state — boost minorities into better jobs and more stable lives.

Many schools, of course, already engage in one particularly insidious form of wealth-based affirmative action: legacy admissions. The children of alumni — who are overwhelmingly white — enjoy a far better chance than other applicants of getting accepted to the nation’s top colleges and universities, which, as this board has argued, constitutes “a form of property transfer from one generation to another.” It has a far larger impact on the racial and socioeconomic makeup of student bodies than race-based affirmative action ever has. At Harvard, an estimated 14 percent of students, most of whom are white, are there at least in part because of a legacy. Reducing or eliminating this practice could create new opportunities for all kinds of students who normally don’t have a chance of getting into a top school.

It’s nice to imagine an America where everyone is treated the same regardless of the color of their skin, but that is not the nation we live in today, or ever have lived in. “Our country has never been colorblind,” Justice Jackson wrote. “Deeming race irrelevant in law does not make it so in life.”

This is a genuinely difficult task, but the solution is not to pretend that we have suddenly become colorblind. Any meaningful effort should take race into account. That’s not only permissible under the Constitution; it’s the only way it has ever succeeded.

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