Supreme Court Strikes Down Racial Preferences in College Admissions

Section One of the Fourteenth Amendment, in pertinent part, declares that “[n]o State . . . shall . . . deny to any person within its jurisdiction equal protection of the laws.” At its most basic level, the Equal Protection Clause requires that state and local governments treat similarly situated individuals the same. Indeed, coming out of Reconstruction, one can fairly say that the central purpose of the Fourteenth Amendment was to eliminate racial discrimination. Unfortunately, the early Supreme Court opinions (e.g., Plessy v. Ferguson (1896)) ignored this core purpose. They allowed states to provide separate accommodations and facilities for blacks and whites as long as they were “equal.” But when benefits and burdens are doled out based on race, such equality is impracticable, if not impossible. The Court should have followed the wisdom of Justice John Marshall Harlan, who pleaded in Plessy that “Our constitution is colorblind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. . .The arbitrary separation of citizens on the basis of race is . . . inconsistent with the civil freedom and the equality before the law established by the Constitution. It cannot be justified upon any legal grounds.” Unfortunately, the Court allowed separate but equal to reign until Brown v. Board of Education (1954).

Brown did not end America’s violation of Equal Protection. It was not long before so-called “benign” discrimination in favor of blacks was sanctioned as a remedy for prior discrimination. The color-blind Constitution was rejected again. This rejection has created an empire of racial preferences in government contracting, school admissions, and hiring. The modern reasoning for this discrimination is “diversity.” A mix of different people, we are told, brings different perspectives and values to the table. A major flaw in such reasoning is that it treats people as members of a group rather than individuals. For example, blacks are assumed to have different interests, experiences, and values than whites and Hispanics. And these differences are solely based on race. The value of the individual is reduced. Such things as viewpoint diversity and socioeconomic diversity are excluded from the calculus. All that matters is the color of a person’s skin.

Of course, this thinking has long infected the admissions process on college campuses. The Supreme Court has sanctioned the use of race to achieve “diverse” student bodies, and college administrators were happy to run amuck with using race in admissions. There are only so many seats in any freshman class; thus, this is a zero-sum game. Individuals denied entry because their skin is the wrong color suffer injury. The stakes are high.

In Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (2023), the Supreme Court struck down the race-based admissions policies of Harvard and the University of North Carolina. The Court held that “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.” The Court did hedge a bit and noted that “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” We can surely bet that our colleges will use this statement to continue to discriminate. How far will they be allowed to go? We shall see.

The thoughts of the three dissenting justices from the majority opinion are frightening. For example, Justice Sotomayor accused the majority of “cement[ing] a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.” In these words, there is no hope that we can all get along as citizens of one country. No, we are Balkanized and hopelessly at odds. We are to perpetually fight over government benefits to obtain as much as possible for our tribes. Unable to point to modern state-sanctioned discrimination against minorities, Sotomayor appealed to “systemic inequities” that requires the government to consider race in its decision-making. Hence, she would endorse continued discrimination in admissions so long as there are benefits for her tribe to seize. If hers is the true vision for America, we can expect violent divisions in the years to come.

William J. Watkins, Jr. is a Research Fellow at the Independent Institute and author of the Independent books, Crossroads for Liberty, Reclaiming the American Revolution, and Patent Trolls.
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