Last week, the Supreme Court ruled that affirmative action admissions programs at both Harvard and UNC violate the equal protection clause of the Fourteenth Amendment. The universities had claimed that their programs conformed to the standards set by prior rulings because they considered a student’s race as only one factor among many. (See my previous post for more background.) The new ruling departs from prior rulings by demanding strictly colorblind admissions.
Chief Justice Robert’s decision leaves the door open only a crack for any consideration of race. He suggested that an individual applicant might be able to convince an admissions office—perhaps in a student essay—how the experience of being a minority had made him or her a more worthy candidate:
At the same time, as all parties agree, 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… A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination.
This puts the burden squarely on the individual applicant to demonstrate superiority over other applicants. It implies that the admissions process is all about individual competition, and cannot be an effort to build a diversified student body for the benefit of all students and the larger society.
Adjudication vs. policymaking
Supreme Court justices have long recognized that their proper role is to adjudicate cases, not to formulate social policy like a legislature or chief executive. Americans have been debating the pros and cons of affirmative action policy for decades. Liberals celebrate its potential to advance social equality by counteracting the effects of past discrimination. They see it as creating new paths for success for historically disadvantaged minorities, and creating the diversity of leaders needed in a pluralistic society. Conservatives see affirmative action as a divisive policy that unfairly favors minorities at the expense of the majority. It provokes resentment and perpetuates racial conflict.
However, the Supreme Court’s job is not primarily to decide whether affirmative action is good or bad social policy. It does not make policy for the government, let alone for private institutions like Harvard. Its job is to hear the cases that come before it and decide which side has the stronger case according to the facts and the law. Most of the work of the Court consists of figuring out how the nation’s body of law—especially the Constitution and its interpretation by the judiciary—applies to the case at hand.
In this case, Justice Sotomayor’s dissent accuses the majority of reading their strong policy preferences into the law, while disregarding too many of the facts and legal precedents. She is especially critical of Justice Thomas, whose own discomfort with being a beneficiary of affirmative action has led him to make sweeping claims about how affirmative action “burdens” minorities, claims that Sotomayor finds contrary to most of the research evidence.
So let’s have a brief look at the law and the historical record.
Equal protection in theory
The Fourteenth Amendment states:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The issue in affirmative action cases is the meaning of the equal protection clause. What does it mean to offer equal protection of the law to people who have been classified into different “races” and treated very differently in the past? What does it require, or permit, or prohibit?
I find it helpful to think about other kinds of inequality that create some need for protection. In the case of age differences, some laws prohibit age discrimination, while others address the special needs of certain age groups. We have free public education specifically for children, and we have programs like Medicare specifically for the elderly. In the case of disabilities, the Americans with Disabilities Act protects the disabled against discrimination, but it defines discrimination broadly to include “a failure to make reasonable modifications in policies, practices, or procedures” or “a failure to remove architectural barriers, and communication barriers that are structural in nature, in existing facilities, and transportation barriers in existing vehicles.” Social Security has a special category of disability benefits available only to that group. Courts do not see any of these things as violations of equal protection.
In these contexts equal protection has two acceptable interpretations. The first is nondiscrimination to protect people from second-class treatment, such as refusing to consider someone for a job they could in fact perform. The second is positive action to counteract inequality, such as accommodations to disabilities or programs to compensate for the infirmities of old age.
Racial distinctions are particularly troublesome because they are on the one hand much more arbitrary, but on the other hand at least as profound in their effects. Racial distinctions are based on ancestry, and ancestry doesn’t have to be a major source of inequality in a pluralistic society. In theory, a nondiscrimination interpretation of equal protection might be enough to insure equality of rights. In fact, however, Americans of European descent have used ancestry to make a hierarchical distinction between “white” and “black,” to the severe disadvantage of the latter. Both custom and law defined people with even a small degree of African ancestry as Negro so that they could be relegated to many forms of second-class citizenship, the worst being slavery. Racial distinctions imposed a massive social disability that excluded people just as effectively as a physical disability, but with disadvantages persisting from generation to generation for centuries. State legislatures, courts, and federal agencies were all complicit in maintaining racial inequality at least until the 1950s.
That being the case, proponents of affirmative action can reasonably argue that positive action to counter racial inequality is called for. Just as ignoring disabilities would not be enough to protect the disabled, Sotomayor says that “ignoring race will not equalize.”
Opponents of affirmative action have a reasonable argument too, although they take it to an extreme. Since racial distinctions are so arbitrary, a policy of colorblind nondiscrimination could conceivably succeed in eliminating them, while affirmative action runs the risk of “reverse discrimination” against the majority.
Judges are not supposed to just pick the interpretation they like and declare it to be the law. They are supposed to study the actual law, taking into account the legal arguments and decisions of jurists, past and present. In fact, the two interpretations of the equal protection clause—nondiscrimination and active countermeasures—have coexisted in legal history. Both deserve some respect.
Equal protection in history
What has equal protection actually meant to legislators and judges struggling with the race issue? Sometimes it has meant nondiscrimination. Sometimes it has meant positive action to counter inequality. Never—except maybe last week—has the first interpretation entirely prevailed over the second.
Based on the “originalist” notion that the meaning of a text at the time it was written should govern its interpretation, which conservative justices have relied on in other matters, the case for the colorblind interpretation is weak. The framers of the Fourteenth Amendment considered—but rejected—a formulation stating that “no State…shall…recognize any distinction between citizens…on account of race or color.” Not only that, but Sotomayor reports that the same Congress:
enacted a number of race-conscious laws to fulfill the Amendment’s promise of equality, leaving no doubt that the Equal Protection Clause permits consideration of race to achieve its goal. One such law was the Freedmen’s Bureau Act, enacted in 1865 and then expanded in 1866, which established a federal agency to provide certain benefits to refugees and newly emancipated freedmen.
The Freedmen’s Bureau provided support for black education, including land grants and funding for black colleges and universities. Like critics of affirmative action today, President Andrew Johnson vetoed the bill on the grounds that it benefited one group of citizens over another, but Congress overrode his veto.
Congress also made some effort at nondiscrimination, prohibiting racial discrimination in public accommodations in the Civil Rights Act of 1875. But the Supreme Court struck that down, ruling that the Fourteenth Amendment did not give the federal government authority over private individuals or corporations.
After Reconstruction, Congress and the federal courts turned away from active efforts to counteract racial inequality. But they did not adopt the nondiscrimination interpretation of equal protection either, since they largely condoned racial segregation. In Plessy vs. Ferguson (1896), the Supreme Court accepted Louisiana’s claim that its segregated schools were equal enough in facilities to satisfy the equal protection clause. Colorblindness was not required.
Only in the mid-twentieth century, in the context of the modern Civil Rights Movement, did the courts adopt a strong nondiscrimination doctrine, expressed especially in Brown v. Board of Education. But shortly thereafter, courts began to mandate positive efforts to reduce inequality, such as requiring businesses to step up their efforts to recruit minority talent or requiring municipalities to hire more minority contractors. In higher education, courts have upheld affirmative action plans at least for purposes of increasing campus diversity, since the Bakke decision of 1978.
At no time since the passage of the Fourteenth Amendment have the courts understood it to mean strict racial neutrality and nothing else. A minority of justices may have argued for that, but until now they have never succeeded in eliminating the alternative interpretation. That is why Justice Sotomayor is so critical of the majority’s jurisprudence:
The Equal Protection Clause of the Fourteenth Amendment enshrines a guarantee of racial equality. The Court long ago concluded that this guarantee can be enforced through race-conscious means in a society that is not, and has never been, colorblind…
[T]he Court 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 Court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society. Because the Court’s opinion is not grounded in law or fact and contravenes the vision of equality embodied in the Fourteenth Amendment, I dissent…
At bottom, the six unelected members of today’s majority upend the status quo based on their policy preferences about what race in America should be like, but is not, and their preferences for a veneer of colorblindness in a society where race has always mattered and continues to matter in fact and in law…
In the end, the Court merely imposes its preferred college application format on the Nation, not acting as a court of law applying precedent but taking on the role of college administrators to decide what is better for society.
Radical jurisprudence
By emphasizing one interpretation of the Constitution to the exclusion of other reasonable and historically grounded views, this Supreme Court takes a radical turn. In this case, it is a radicalism of the right, but I’ll imagine what liberal radicalism might look like in order to clarify the general idea of radical jurisprudence.
As the law stands now, after this decision, admissions processes cannot award any points on the basis of race, but they can still award points for being the child of an alumnus (a “legacy” applicant) or the relative of a university donor. Legacy applicants are disproportionately white wherever black admissions are relatively recent, and Harvard is about six times as likely to admit legacy as non-legacy candidates. Suppose a liberal Supreme Court were to rule that the equal protection clause forbids legacy admissions altogether. Suppose it would go further and uphold a law that imposed a 100% tax on estates so the money could be used to equalize educational funding across communities. (If we believe in equal opportunity, why not run society like a Monopoly game, where all players start out with the same money? At the end of each game, all remaining money is returned to the central bank so that the next generation of players can get their equal start.)
Conservatives would probably go ballistic, accusing the liberal justices of taking a radical, utopian, socialist ideology and reading it into the Constitution. Conservatives would object, with some justification, that the Constitution says nothing about legacies and estates, and that the equal protection clause has never been understood to forbid them.
The Court’s new prohibition on race-conscious initiatives is similarly radical, in light of the judicial history. The conservatives are taking their ideal of a colorblind society and claiming that this is all the equal protection clause can mean. This too is a utopian notion, far removed from what America has ever been. As I said in my previous post, maybe someday “what we now call ‘races’ will become so intermingled socially and genetically that trying to put people into color-coded categories will seem silly.” But to demand colorblindness instantly, by judicial fiat, is a radical step. It is a conservative form of utopianism because it idealizes the present, exaggerating how much equality has already been achieved and relieving leaders of the responsibility to take any further action for the sake of diversity and inclusion. When Mike Pence was asked if he believed there was still racial inequality in American education, he answered:
I really don’t believe there is. I believe there was. I mean there may have been a time when affirmative action was necessary simply to open the doors of all or our schools and universities, but I think that time has passed, and we’ll continue to move forward as a colorblind society.
In reality, many states are like North Carolina, where communities and schools continue to be highly segregated—albeit by custom, not by law—and black schools are underfunded. Unfortunately, colorblindness tends to make leaders blind to racial disparities and possible remedies. It encourages an indifference to inequality that is the opposite of what was originally intended by the Fourteenth Amendment. It makes judges more interested in protecting the advantages of the majority than in countering the disadvantages of minorities.
Why this is happening has more to do with the radicalization of the Republican Party than with any major shift in judicial thinking. A Republican president who lost the popular vote managed to get three extreme conservatives onto the Supreme Court. As a result, losing arguments in previous cases have suddenly become winning arguments, whether the weight of legal opinion supports them or not.
Progressive are not entirely without options, however. Many race-neutral initiatives, such as the Affordable Care Act, do have substantial impacts on communities of color. Initiatives to make college more affordable could have similar effects. These may have to suffice until progressives achieve more solid political support.
Beneath the Surface 