The Supreme Court will take up the case brought by Students for Fair Admissions (SFFA) against Harvard and the University of North Carolina on Monday. SFFA simply asks that universities judge applicants on their individual achievements, rather than taking their skin color into account.
In virtually every other area of life, the Constitution and the federal civil rights laws forbid the government from using race as a plus or minus factor in making decisions. Government cannot use race to distribute government funds, provide benefits, deploy police, or run prisons or hospitals. Yet in Grutter v. Bollinger, the justices decided to create a rare exception to the ban on government and government funding recipients’ use of race for admissions in higher education. A majority in Grutter accepted the dubious claim that colleges could seek racial diversity as a proxy for intellectual diversity — which relies upon the pernicious assumption that certain races could only hold certain ideologies.
As Yogi Berra observed, predictions can be hard, especially about the future. But with Chief Justice John Roberts bolstered by Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, the current Supreme Court appears more committed to the principle of equal protection than its predecessors.
While these mostly recently appointed justices haven’t made their views clear on race, other conservative-leaning justices have. “It is a sordid business, this divvying us up by race,” Roberts has written. “Discrimination on the basis of race is illegal, immoral, unconstitutional, inherently wrong, and destructive of democratic society,” the late Justice Antonin Scalia wrote. And according to the court’s sharpest critic of racial preferences, Justice Clarence Thomas, “every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.”
While progressive media are already warning of the sky falling should the court strike down race-based admissions, don’t fall for the hype. Defenders of race preferences will claim that affirmative action is necessary to ensure opportunity for racial and ethnic minority students. In fact, the court can promote opportunity for all by upholding other constitutional rights, including some that have been tragically under-enforced for decades.
Expect to see games of motte and bailey — where Grutter is defended as a limited decision when it suits defenders of race preferences but then framed as having much broader implications when their interests run the other way. While Grutter does have some limiting language, in practice those limitations have barely been enforced. Letting Grutter stand would almost certainly continue the expansion of race-based decision-making in other areas of law and policy.
The best evidence available indicates that race preferences often harm their intended beneficiaries. Racial preferences also treat our economy and society as a zero-sum game, where racial groups fight for their share of the spoils through government power. But a better way exists to guarantee opportunities for all Americans — by enforcing constitutional rights.
First, the Supreme Court can vindicate the right to earn a living. It is only because of unfortunate twists of history that this right has been relegated to second-tier status. The results have been tragic for individuals seeking paths to opportunity.
Take, for example, Pacific Legal Foundation client Ursula Newell-Davis, a social worker who wanted to open a center providing respite care for children with special needs. Louisiana’s Facility Need Review statute blocks her from opening this business unless her competitors agree that her services are necessary — a rule that makes about as much sense as conditioning opening a Burger King on approval from McDonald’s. Recognizing a constitutional right to earn a living would overturn such arbitrary and unfair laws.
Second, courts can continue to enforce the right of parents to choose the best school for their children. Today, limitations on school choice disadvantage children from poor backgrounds most. Upholding parents’ rights to choose the best schools for their children will expand opportunity for all.
Third, courts can expand opportunity by looking anew at housing policies that wrongfully deprive individuals of constitutionally protected property rights. Zoning laws based on prejudice or community opposition disguised by facially neutral justifications limit housing supply and opportunity.
Race preferences are not merely pernicious, but harm society as a whole by limiting opportunity. Equality and opportunity are enshrined in the 14th Amendment as complementary principles. The court should strike down race preferences on equal protection grounds in the SFFA cases while promoting opportunity by enforcing other constitutional rights.
Grutter is studded with language about the uniqueness of the higher education setting. Its allowance of race should only apply narrowly to colleges and university admissions. But in practice, its effects have been anything but limited. Some of the difficulty stems from the challenges of litigating a challenge against a university. Most individual applicants wronged by unlawful preferences will have graduated long before they can hope for a favorable judgment. SFFA’s suit against Harvard, for example, was first brought in 2014. Colleges and universities, moreover, have resorted to disguising their use of race behind pretexts such as personality and leadership scores.
But whatever the reasons for Grutter’s under-enforcement, race preferences have spread well beyond higher education. The diversity disease has metastasized to cardiac care, Covid-19 shots, Paxlovid and other anti-viral treatments for Covid-19, Covid-19 lockdown relief packages for small business owners, Covid-19 lockdown relief for restaurant owners, farm loan relief, appointment of counsel in class-action cases, and student-edited law journal membership. Race preferences routinely appear in major federal legislation ranging from Obamacare to Dodd-Frank to the Inflation Reduction Act. Defenders of these programs often cite Grutter as legal justification or else deploy its vocabulary of diversity without acknowledgment because of the concept’s drift into the broader culture.
The expansion of race preferences into K-12 schools is particularly unfortunate because education is an engine of opportunity. Many students attending public magnet high schools, for example, come from disadvantaged backgrounds. Yet they excel when placed in demanding environments that push them to fully develop their talents. At Stuyvesant High School in New York City, for instance, 44.3 percent of students receive free or reduced-price lunch (because of their families’ low incomes); nevertheless, 75 percent of students score above 1470 on the SAT I.
Selective high schools cultivate entrepreneurs whose innovations fuel national economic growth. Entrepreneur Howard Lerman observed on Twitter, for example, that attending the Thomas Jefferson High School for Science and Technology in Alexandria, Virginia, gave him the opportunity to start multiple companies, back dozens more, and create thousands of jobs.
Yet Thomas Jefferson High revamped its admissions process in 2020 because of its desire to rebalance its student demographics. The changes had the effect of denying educational opportunities to many Asian American students for no reason other than their race. Similar stories have occurred in magnet middle schools in Montgomery County, Maryland, and New York City’s selective public high schools. In Hartford, Connecticut, rigid adherence to a racial quota scheme similarly shut talented black students like Jarod Robinson out of magnet schools purely because of race.
The limiting language in Grutter should not trick us into believing that racial preferences in college admissions have been only a modest departure from the principle that individuals should be treated as individuals. A Supreme Court opinion overturning Grutter is essential to ensuring that individuals are not reduced to membership in their racial or ethnic groups and that we return to the Declaration of Independence’s claim that we are created equal.
This op-ed was originally published at The Federalist, on October 31, 2022.