Ending Racial Discrimination in College Admissions — The Supreme Court Decision in Students for Fair Admissions, Inc. Considered in Historical Context.
I. Facing Doomsday Again.
Because it went against elite predilections, The Supreme Court’s recent decision in Students for Fair Admissions, Inc. v. President & Fellows of Harv. Coll. (2023) ___U.S.___ (“Students”) has been subjected to the usual blistering criticism. This criticism naturally foregrounds predictions of a return to racism and the destruction of diversity in universities and colleges.[1] These criticisms seem overwrought in that the effect of Students will be to increase diversity by increasing the admission of “Asians” — a diverse group that encompasses Koreans and Pakistanis. Moreover, the “racism” of the decision allegedly arises from its prescription that race is not to be considered in college admissions.
What we see in criticisms of Students is a failure of the critics to comprehend the decision and the legal history into which the decision is embedded. Properly read, the Students Decision is a fascinating survey of legal history and an insightful window into a debate that should have been over seventy years ago.
II. The Issue — Application of Strict Scrutiny.
The Students Decision involves one big issue — namely, how the “strict scrutiny” standard is to be applied to the issue of “benign” racial discrimination in college admissions.
Based on the critical articles I read I suspect that this will come as a surprise, but Supreme Court Justices are not supposed to vote their personal preferences based on how outraged or supportive MSNBC commentators or the New York Times feel about a case. Instead, they are supposed to make their decisions in an objective and predictable way that takes into account the interests we all have in the functioning of the democratic branches of government and the personal interests of individual litigants.
In cases involving the review of governmental actions under the Constitution, since approximately the 1940s, the achievement of this judicial function has by and large been accomplished through the formal development and application of constitutional standards of review. These standards provide legal formulas that governmental action must meet in order to be upheld as constitutionally permissible. The standards turn on the kind of constitutional interest implicated by the government action. It shouldn’t be surprising by the more a government action intrudes on express constitutional rights, the higher the standard of review and the more likely the court will be to strike down the action as unconstitutional.
Is this surprising? Isn’t this what we want?
A. We have standards.
There are three standards of review: Strict Scrutiny, Intermediate Scrutiny, and the Rational Basis Test.[2]
The “strict scrutiny” standard of review applies when governmental action intrudes on religion, the freedom of speech, racial classifications, due process, and other expressly enumerated individual rights. If strict scrutiny applies, the government is required to show a “compelling governmental interest” and that the governmental action is “narrowly tailored” to accomplish that interest, i.e., it either doesn’t apply to people outside those necessary to meet the goal or ignores those who are necessary. If the government action is “overbroad/overinclusive” or “underinclusive,” a reviewing court should conclude that the government has failed to show either that the interest is “compelling” or that governmental action is “narrowly tailored.”
Strict scrutiny is actually a very high standard to pass since it is often not hard to think of some group that has been omitted who should be included or, alternatively, has been included and should be included.
The intermediate scrutiny standard applies to gender, alienage, and illegitimacy, i.e., to things not expressly mentioned in the Constitution, but which seem to implicate the right of people to participate in a democracy. The formula for intermediate scrutiny requires the government to show an “exceedingly persuasive justification” or “important objectives” and that the governmental action is “substantially related to the objectives.” Clearly, this kind of formula gives the government a lot more latitude to classify aliens, for example. So, it might be permissible to deny jury service to aliens under the Intermediate Standard, but it would never be permissible to deny jury service to Americans of Greek descent.[3]
The rational basis standard applies to everything else, i.e., it applies to the routine decisions of government. The legal formula requires the government to show that the government action is “rationally related” to the government goal. In other words, the law simply has to be something other than arbitrary or insane.
The rational basis test is hard to fail. Governments can pay top dollar for some very sharp lawyers who can find some reason — however tenuous — to explain why some law is not totally insane.
When I was in law school, the application of strict scrutiny meant that the law under consideration would be deemed unconstitutional, while the application of rational basis meant that it would pass. You didn’t have to read the case; you could tell from the decision on the standard of review.
I think it is possible to present this in a helpful grid:
B. Which standard of review applied to the Race-based Admission Program in the Students Case?
For anyone who has been paying attention, the answer is easy: Strict Scrutiny applies.[4]
No justice disagreed with this standard, although the dissent tentatively engaged in special pleading about why strict scrutiny should be reconsidered when the right people were the beneficiaries of racial discrimination and/or the wrong people were hurt.
This meant that recipients of government aid — Harvard and North Carolina — were required to show that a “compelling governmental interest” was at stake and to further prove that their program actually accomplished that goal without leaving anyone out who should have been in or including anyone who shouldn’t have been included.
III. From Plessy to Brown and Back Again.
In some ways, the debate between the majority and the dissent is a debate between two cases — actually the dissent of one case — and the majority opinion of another case. The cases were decided over 100 years apart. The dissent and the majority opinion represent almost polar opposite conclusions about the role that race can play in American law.
While this is a dramatic approach, the fact is that there were other cases along the way which puts the legal development into context, and, so, must also be considered.
A. Plessy v. Fergusson (1896) — Separate but Equal leads to sixty years of Jim Crow.
The dissent is Justice John Marshall Harlan’s dissent in Plessy v. Ferguson (1896) 163 U.S. 537 [16 S.Ct. 1138, 41 L.Ed. 256]. To cut to the chase, Plessy held that it was constitutional to separate the races so long as the separate accommodations were equal. In the Plessy case, the specific accommodation involved the question of whether a Louisiana state law could segregate railroad passengers by race. The plaintiff in Plessy was Homer Plessy. Plessy could and did pass as a white person. He lived in New Orleans as a member of the community of “les gens de couleur libres”- the “free men of color “— who had never been slaves and did not consider themselves socially inferior to anyone. The case was a collusion between the railroads and the New Orleans “free men of color” community.
It will come as a shock to some, but the evil capitalists were on the side of the angels in this one. They opposed Jim Crow (and always did) because Jim Crow meant additional expenses in hooking up “colored train carriages” in southern states. They wanted Jim Crow abolished for economic reasons.
Homer Plessy’s arrest for violating the law was civilized and staged.[5] The issue then went up to the Supreme Court where Louisiana’s state laws were upheld, thus giving the Supreme Court’s imprimatur for Jim Crow to be applied throughout the South.
Plessy was decided before the development of the various standards of review. If we were to anachronistically assign a standard of review, we would probably say that the Court was applying a rational basis standard.[6] Thus, the court wrote:
A statute which implies merely a legal distinction between the white and colored races — a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color — has no tendency to destroy the legal equality of the two races, or reestablish a state of involuntary servitude. Indeed, we do not understand that the Thirteenth Amendment is strenuously relied upon by the plaintiff in error in this connection.
(Plessy v. Ferguson (1896) 163 U.S. 537, 543 [16 S.Ct. 1138, 1140, 41 L.Ed. 256, 258].)
The Plessy Court also observed:
In this connection, it is also suggested by the the learned counsel for the plaintiff in error that the same argument that will justify the state legislature in requiring railways to provide separate accommodations for the two races will also authorize them to require separate cars to be provided for people whose hair is of a certain color, or who are aliens, or who belong to certain nationalities, or to enact laws requiring colored people to walk upon one side of the street, and white people upon the other, or requiring white men’s houses to be painted white, and colored men’s black, or their vehicles or business signs to be of different colors, upon the theory that one side of the street is as good as the other, or that a house or vehicle of one color is as good as one of another color. The reply to all this is that every exercise of the police power must be reasonable, and extend only to such laws as are enacted in good faith for the promotion for the public good, and not for the annoyance or oppression of a particular class. Thus in Yick Wo v. Hopkins, 118 U.S. 356, it was held by this court that a municipal ordinance of the city of San Francisco, to regulate the carrying on the public laundries within the limits of the municipality, violated the provisions of the Constitution of the United States, if it conferred upon the municipal authorities arbitrary power, at their own will, and without regard to discretion, in the legal sense, of the term, to give or withhold consent as to persons or places, without regard to the competency of the persons applying, or the propriety of the places selected for the carrying on the business. It was held to be a covert attempt on the part of the municipality to make an arbitrary and unjust discrimination against the Chinese race. While this was the case of a municipal ordinance, a like principle has been held to apply to acts of a state legislature passed in the exercise of the police power.
(Plessy v. Ferguson (1896) 163 U.S. 537, 549–550 [16 S.Ct. 1138, 1143, 41 L.Ed. 256, 260].)
In other words, where there was no rational basis for classification, the Plessy Court felt comfortable that such laws would be struck down.
So, what was the rational basis for Plessy decision? It is not clear to me but seems to rest on some notion that there was some advantage for everyone — black and white — in maintaining a distance between the “dominant race” and the other race:
It is claimed by the plaintiff in error that, in any mixed community, the reputation of belonging to the dominant race, in this instance the white race, is property, in the same sense that a right of action, or of inheritance, is property. Conceding this to be so, for the purposes of this case, we are unable to see how this statute deprives him of, or in any way affects his right to, such property. If he be a white man and assigned to a colored coach, he may have his action for damages against the company for being deprived of his so called property. Upon the other hand, if he be a colored man and be so assigned, he has been deprived of no property, since he is not lawfully entitled to the reputation of being a white man.
(Plessy v. Ferguson (1896) 163 U.S. 537, 549 [16 S.Ct. 1138, 1142–1143, 41 L.Ed. 256, 260].) [7]
The answer may be found in an argument made by the State of Missouri in a later case, i.e., “Social equality is not a legal question and cannot be settled by law or by the judgments of courts.” (Missouri ex rel. Gaines v. Canada (1938) 305 U.S. 337, 342 [59 S.Ct. 232, 233, 83 L.Ed. 208, 209] (“Canada.”) It is hard for us to understand this position today, but the Plessy court simply stuck the category of “laws regulating social interactions” into the “everything else” box in my “standards of review” grid.[8] We, of course, are horrified because it was the state that was using state power to enforce the laws, which implicates civil rights, but we will probably be the subject of similar criticism by equally shocked future generations.
History is complicated. We may not be the good guys.
Plessy v Fergusson is best remembered now for the dissent of Justice Harlan and his prescient call for a color-blind society:
The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, 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 law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. It is, therefore, to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.
(Plessy v. Ferguson (1896) 163 U.S. 537, 559 [16 S.Ct. 1138, 1146, 41 L.Ed. 256, 263–264].)
Justice Harlan had been born into a slave-holding Kentucky family but had fought on the side of the Union.
History is complicated. Maybe we should stop playing these gotcha games about whose ancestors owned slaves. [9]
Plessy’s “separate but equal” doctrine remained largely undeveloped in the Supreme Court. The Court took very few “separate but equal” cases and, surprisingly, most of the cases it took resulted in the government action being struck down under Plessy:
In this Court, there have been six cases involving the “separate but equal” doctrine in the field of public education. 7 In Cumming v. County Board of Education, 175 U.S. 528, and Gong Lum v. Rice, 275 U.S. 78, the validity of the doctrine itself was not challenged. 8 In more recent cases, all on the graduate school level, inequality was found in that specific benefits enjoyed by white students were denied to Negro students of the same educational qualifications. Missouri ex rel. Gaines v. Canada, 305 U.S. 337; Sipuel v. Oklahoma, 332 U.S. 631; Sweatt v. Painter, 339 U.S. 629; McLaurin v. Oklahoma State Regents, 339 U.S. 637. In none of these cases was it necessary to re-examine the doctrine to grant relief to the Negro plaintiff. And in Sweatt v. Painter, supra, the Court expressly reserved decision on the question whether Plessy v. Ferguson should be held inapplicable to public education.
(Brown v. Bd. of Educ. (1954) 347 U.S. 483, 491–492 [74 S.Ct. 686, 690, 98 L.Ed. 873, 879].)
I was surprised by this. I am as cynical as anyone else about the racism of our past, but it seems that the Supreme Court understood that the “equal” element of Plessy’s “separate but equal” formula was a serious constraint on state action. For example, The Canada decision involved an effort by the state of Missouri to pay tuition to an out-of-state law school for a black law student. The Supreme Court held that this was unconstitutional since the state had to provide equal accommodation within the state. Canada was decided in 1938.
Moreover, all four of the cases striking down unequal accommodations were joined by former Klansman Justice Hugo Black.
History is complicated.
B. Sweatt v. Painter (1950) — Unequal is not Constitutional: Telegraphing the end of Plessy.
In Sweatt v. Painter (1950) 339 U.S. 629 [70 S.Ct. 848, 94 L.Ed. 1114], the United State Supreme Court held that the University of Texas Law School was required to admit a black law student because it had failed to provide an equal law school for black Texans. The Court noted the disparity in volumes of library books, number of faculty, and physical accommodations in reaching the decision that the proposed — but not existing — separate law school was in no way “equal” to the University of Texas. A significant consideration for the Sweatt Court was “practical”:
Few students and no one who has practiced law would choose to study in an academic vacuum, removed from the interplay of ideas and the exchange of views with which the law is concerned. The law school to which Texas is willing to admit petitioner excludes from its student body members of the racial groups which number 85% of the population of the State and include most of the lawyers, witnesses, jurors, judges and other officials with whom petitioner will inevitably be dealing when he becomes a member of the Texas Bar. With such a substantial and significant segment of society excluded, we cannot conclude that the education offered petitioner is substantially equal to that which he would receive if admitted to the University of Texas Law School.
(Sweatt v. Painter (1950) 339 U.S. 629, 634 [70 S.Ct. 848, 850, 94 L.Ed. 1114, 1119].)
With Sweatt v. Painter, we are well on the way to Brown v. Board of Education.
Also, do we have here an early gesture to “diversity”?[10]
As a matter of historical interest, Sweatt punted on the question of whether Plessy still applied to colleges:
In accordance with these cases, petitioner may claim his full constitutional right: legal education equivalent to that offered by the State to students of other races. Such education is not available to him in a separate law school as offered by the State. We cannot, therefore, agree with respondents that the doctrine of Plessy v. Ferguson, 163 U.S. 537 (1896), requires affirmance of the judgment below. Nor need we reach petitioner’s contention that Plessy v. Ferguson should be reexamined in the light of contemporary knowledge respecting the purposes of the Fourteenth Amendment and the effects of racial segregation. See supra, p. 631.
(Sweatt v. Painter (1950) 339 U.S. 629, 635–636 [70 S.Ct. 848, 851, 94 L.Ed. 1114, 1120].)
The court held (a) Texas did not meet the Plessy standard and (b) refused to re-examine Plessy.[11]
C. Brown v. Bd. of Educ. (1954) 347 U.S. 483 [74 S.Ct. 686, 98 L.Ed. 873] (“Brown I.”) — Separate is not Equal — Plessy is overruled in Education and Racial Discrimination in Education is not allowed.
In Brown I, a unanimous Supreme Court held that a segregated school system was unconstitutional even though it did not violate the “equality” portion of Plessy, but because it involved segregation.
It may be surprising for moderns to learn that the Topeka school system provided equal — or “substantially” equal — education to blacks and whites, but the Supreme Court decided that it did:
In the instant cases, that question is directly presented. Here, unlike Sweatt v. Painter, there are findings below that the Negro and white schools involved have been equalized, or are being equalized, with respect to buildings, curricula, qualifications and salaries of teachers, and other “tangible” factors. 9 Our decision, therefore, cannot turn on merely a comparison of these tangible factors in the Negro and white schools involved in each of the cases. We must look instead to the effect of segregation itself on public education.
(Brown v. Bd. of Educ. (1954) 347 U.S. 483, 492 [74 S.Ct. 686, 690–691, 98 L.Ed. 873, 879–880].)
Relying on new-fangled sociological knowledge and evidence of social stigmatization, the Supreme Court unanimously held that segregated institutions could never be equal.
Did Brown overrule Plessy? History books and Supreme Court decisions today will tell you that it did. However, the language of Brown punted to some extent by limiting Brown’s holding to education:
Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. 11 Any language in Plessy v. Ferguson contrary to this finding is rejected.
We conclude that in the field of public education the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal.
(Brown v. Bd. of Educ. (1954) 347 U.S. 483, 494–495 [74 S.Ct. 686, 692, 98 L.Ed. 873, 881].)
It is not immediately apparent that Brown would apply to public accommodations. Do Brown’s sociological studies apply to transportation? Are black students held back because of Jim Crow restaurants? As we know, though, the logic of colorblindness was worked out in later cases, and in 1963, the court finally held segregation in transportation to be a violation of equal protection.
Finally, Justice Harlan and Homer Plessy had been vindicated.
D. Regents of Univ. of Cal. v. Bakke (1978) 438 U.S. 265 [98 S.Ct. 2733, 57 L.Ed.2d 750] (Bakke) — Quotas are Unconstitutional but racial Discrimination in Education may be permissible for Diversity.
People often forget that Bakke won.
Alan Bakke applied for a place at UC Davis Medical School. His grades and tests would have entitled him to a position at the school except as part of its “affirmative action” program UC Davis had instituted a quota for black students. Davis set aside 16 out of 100 special admission seats which white students could not compete for. Based on that fact, Bakke was not admitted.
The Bakke Case led to a highly fractured set of opinions. Four “liberal” justices upheld the Davis policy; four “conservative” justices held that any consideration of race was unconstitutional. One justice — Justice Powell — wrote a decision that held that (a) the UC Davis system was unconstitutional and (b) race could be used as a factor in admissions. The liberal justices joined the (b) part of the decision and the conservatives joined the (a) part of the decision, and in this way, a majority decision was stitched together.
Alan Bakke was admitted the next year. [12]
By the time of Bakke, the requirement that racial regulations meet the standard of strict scrutiny had been established.[13] Powell’s decision accordingly sought to define the required “compelling government interest.” Powell rejected various offered governmental interests as not being “compelling.” The rejected offers included reparations for past discrimination and creating a body of doctors who would service minority populations.
Powell also rejected a theory of “benign discrimination” whereby discrimination against the white majority was acceptable under the Constitution:
Petitioner urges us to adopt for the first time a more restrictive view of the Equal Protection Clause and hold that discrimination against members of the white “majority” cannot be suspect if its purpose can be characterized as “benign.” 34 The clock of our liberties, however, cannot be turned back to 1868. Brown v. Board of Education, supra, at 492; accord, Loving v. Virginia, supra, at 9. It is far too late to argue that the guarantee of equal protection to all persons permits the recognition of special wards entitled to a degree of protection greater than that accorded others. 35 “The Fourteenth Amendment is not directed solely against discrimination due to a ‘two-class theory’ — that is, based upon differences between ‘white’ and Negro.” Hernandez, 347 U.S., at 478.
(Regents of Univ. of Cal. v. Bakke (1978) 438 U.S. 265, 294–295 [98 S.Ct. 2733, 2750–2751, 57 L.Ed.2d 750, 773–774].)
However, Powell did find a compelling governmental interest in the idea of “diversity” or a “diverse student body.” (Regents of Univ. of Cal. v. Bakke (1978) 438 U.S. 265, 311 [98 S.Ct. 2733, 2759, 57 L.Ed.2d 750, 785].) Powell reached back to the 1950 decision in Sweatt to find a hook for his “diversity” theory. Sweatt noted that segregated black law students were denied equal protection by being denied the ability to work with the people who represented 85% of the State of Texas. They were also denied the development associated with interaction with members of that group. In addition, Powell noted that schools like Harvard had long recruited for “diversity” in reaching out to recruit students from California or rural areas.
Analogizing race to circumstances like “being from California,” Powell concluded that race could be used as a factor in “diversity” in order to reach the goals of broadening the knowledge of students that had been recognized by Sweatt.[14] In doing this, Powell inflated the gasbag of “diversity, equity, and inclusion” which has turned into a multibillion dollar industry today.
Powell’s willingness to allow colleges to use race in the same way they used “being from California” was based on his confidence in the expertise of university officials. Powell trusted universities not to game the system, not to invent crypto-quotas. Why he did this is not clear since in his lifetime universities like Harvard were famous for using quotas to keep out Jews. It didn’t seem to dawn on Powell that universities would rig the system against whites — lower-class whites to be sure — but still whites. It definitely didn’t occur to him that new minorities might emerge against whom universities might want to resurrect the old quotas, like, say, “Asians.”
Nothing is constant. History is complicated.[15]
The bottom line in Bakke was (a) quotas are unconstitutional and (b) race can be used in some fashion to create a “diverse student body.”[16]
E. Grutter v. Bollinger (2003) 539 U.S. 306 [123 S.Ct. 2325, 156 L.Ed.2d 304] — Racial Discrimination in Education is Allowed if it is kept sufficiently nebulous but only for another Twenty-Five Years.
To me, Grutter is infamous for including the dumbest and most embarrassing bit of legal dicta in American judicial history. I am referring to Justice O’Connor’s statement in the majority decision that “[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” (Grutter v. Bollinger (2003) 539 U.S. 306, 343 [123 S.Ct. 2325, 2347, 156 L.Ed.2d 304, 342].)
When I read that in 2003, I was dumbfounded. What kind of constitutional decision has a “don’t use after” date? If something is unconstitutional, it is unconstitutional today. If it isn’t, it doesn’t become unconstitutional with the passage of time. This “sunset clause” approach would have been like the court in Korematsu saying “We will allow the denial of civil rights to Japanese-Americans for no more than four years.” What other civil rights are defeasible for a definite period of time? Voting? The right to counsel? The privilege against self-incrimination?
I thought this was pure legal dicta and would be forgotten. I did not calendar 2028 as “the end of affirmative action.” I have a firm conviction that no college or university had plans to phase out race-based admissions in the next five years.
I now realize that Justice Thomas took this dictum very seriously. Thomas lost no time nailing down in his dissent that affirmative action would end in twenty-five years. Justice Thomas was also the only justice who would still be on the court when Students was decided, enabling him to cash in O’Connor’s dicta.[17]
Grutter and its associated case, Gratz v. Bollinger (2003) 539 U.S. 244 [123 S.Ct. 2411, 156 L.Ed.2d 257], show the continuing problem of factoring race into “diversity.” In Gratz, the University of Michigan gave minority undergraduate applicants twenty extra points in their admission process. The Supreme Court found that this offended the Constitution, presumably by being just a bit too obviously racist. In fact, there is not much difference between a quota and a twenty-point bonus for race alone.
Grutter represents one of the rare times that an affirmative action program has survived strict scrutiny in the Supreme Court. In Grutter, the University of Michigan’s law school had a system that was better at confusing the racial element. Michigan described the racial component as being a “plus factor” that did not guarantee admission but somehow was being used to create a “critical mass” of minority students which was not a quota. Like the arguments in Students, the University’s arguments and distinctions threaten to collapse under their own weight. How is it possible for this seemingly weightless “plus factor” to make such a big difference that it can create a “critical mass” of students and yet not turn into a quota?
In Students, the Supreme Court stated its frustration with the cognitive dissonance that race-based admissions required:
If you cannot follow all these twists and turns, you are not alone. See, e.g., Fisher, 579 U. S., at 401–437 (Alito, J., dissenting); Grutter, 539 U. S., at 346–349 (Scalia, J., joined by Thomas, J., concurring in part and dissenting in part); 1 App. in №21–707, pp. 401–402 (testimony from UNC administrator: “[M]y understanding of the term ‘critical mass’ is that it’s a . . . I’m trying to decide if it’s an analogy or a metaphor[.] I think it’s an analogy. . . . I’m not even sure we would know what it is.”); 3 App. in №20–1199, at 1137–1138 (similar testimony from a Harvard administrator). If the Court’s post-Bakke higher-education precedents ever made sense, they are by now incoherent.
(Students for Fair Admissions, Inc. v. President & Fellows of Harv. Coll. (2023) ___U.S.___ [29 Fla.L.Weekly Fed.S. 1149].)[16]
The dissents of Kennedy and Thomas were particularly strong in Grutter. Grutter was decided after California had repudiated affirmative action by referendum. It seems clear that most Americans were tired of the racism implicit in affirmative action. It may well have been the case that the “twenty-five-year sunset clause” was required to get the votes necessary to pass strict scrutiny (and keep the elites in the Ivy League happy and continuing to hand out invitations to cocktail parties and speaking engagements.)
Justice O’Connor may have had her finger on the zeitgeist when she wrote:
The requirement that all race-conscious admissions programs have a termination point “assures all citizens that the deviation from the norm of equal treatment of all racial and ethnic groups is a temporary matter, a measure taken in the service of the goal of equality itself.” Richmond v. J. A. Croson Co., 488 U.S., at 510, 102 L Ed 2d 854, 109 S Ct 706 (plurality opinion); see also Nathanson & Bartnik, The Constitutionality of Preferential Treatment for Minority Applicants to Professional Schools, 58 Chicago Bar Rec. 282, 293 (May-June 1977) (“It would be a sad day indeed, were America to become a quota-ridden society, with each identifiable minority assigned proportional representation in every desirable walk of life. But that is not the rationale for programs of preferential treatment; the acid test of their justification will be their efficacy in eliminating the need for any racial or ethnic preferences at all”).
(Grutter v. Bollinger (2003) 539 U.S. 306, 342–343 [123 S.Ct. 2325, 2346, 156 L.Ed.2d 304, 341].)
Nonetheless, the idea of diversity continued to trundle down the tracks, augmented now by an entire industry of DEI consultants.
The bottom line in Grutter and Gratz was (a) a point system was unconstitutional and (b) diversity as a plus factor (but not a point) used individually would pass constitutional muster for twenty-five years (which no one took seriously, as can be seen by the fact that no one had started dismantling their DEI programs by 2023.)
F. Students for Fair Admissions, Inc. v. President & Fellows of Harv. Coll. (2023) ___U.S.___ — Time is up — Racial Discrimination in Education is Unconstitutional.
Students comes across as an intellectual knife fight compared to Marquis de Queensbury engagement in prior cases. It seems like the battle lines are drawn and the two sides inhabit completely different worlds. There is even some tentative effort by the dissent to argue that racial classification should be exempt from strict scrutiny in college admission cases.
The dissenting justices reject the core premise of constitutional law after Brown and Bakke, namely that Plessy was wrong. As I’ve pointed out, Brown and subsequent decisions take the position that a “colorblind Constitution” is the default position of Constitutional law. Plessy and its progeny had erred in reading racism into the Constitution and this error must be avoided except in rare, exceptional, and narrowly circumscribed circumstances. Racial categories in social policies must never again be normalized under the Constitution. Even Powell in Bakke repudiated a theory of permissible benign racial discrimination on the grounds that the Constitution was supposed to be colorblind unless there was a really compelling non-racial state interest justified by a really narrowly crafted program.
In other words, the Supreme Court had historically recognized that Justice Harlan’s dissent in Plessy was right; the majority opinion was wrong.
The dissents in Students completely repudiates this settled understanding. The dissents of Sotomayor and Brown deny that the Constitution was ever supposed to be colorblind. To them, “colorblindness” is naïve and, yet, a stalking horse for racism. There is nothing in their decision that suggests that racial categories drawn in favor of their preferred races are to be regretted, limited, or narrowed. They are attempting to do what Powell said was no longer possible — they are trying to “retcon” the Fourteenth Amendment as incorporating the “two classes theory” of the Fourteenth Amendment. In Bakke, Justice Powell had explained:
Once the artificial line of a “two-class theory” of the Fourteenth Amendment is put aside, the difficulties entailed in varying the level of judicial review according to a perceived “preferred” status of a particular racial or ethnic minority are intractable. The concepts of “majority” and “minority” necessarily reflect temporary arrangements and political judgments. As observed above, the white “majority” itself is composed of various minority groups, most of which can lay claim to a history of prior discrimination at the hands of the State and private individuals. Not all of these groups can receive preferential treatment and corresponding judicial tolerance of distinctions drawn in terms of race and nationality, for then the only “majority” left would be a new minority of white Anglo-Saxon Protestants. There is no principled basis for deciding which groups would merit “heightened judicial solicitude “ and which would not.
(Regents of Univ. of Cal. v. Bakke (1978) 438 U.S. 265, 295–296 [98 S.Ct. 2733, 2751, 57 L.Ed.2d 750, 774–775].)
The dissents finesse these nuances by the expedient of imposing a Manichaean “white versus everyone else” framework on society.[17] They know who the whites are and they have no doubt that the present framework of society will not change in the appreciable future.
The dissenters’ approach surprised me. When I read Justice Thomas’s long section on the colorblind history of constitutional law, I did not understand what the point was. As someone who had attended UCLA Law School in the early 1980s, this was a given. I would no more have suspected an argument against a “colorblind” Constitution than I would have imagined one calling for a return of slavery (or calling for the constitutionality of censorship, which should have been a clue to me about how things have changed.) However, history is complicated. There has been a revolution among the elites; racism — anti-colorblindness — is now entrenched with at least three votes on the Supreme Court.
In ruling against a continuation of race-based admissions, the majority decision runs easily through the strict scrutiny standard.
1. Race-based admissions do not serve a compelling governmental interest.
After fifty years, the only “compelling governmental interest” that remained was “diversity.”[20] However, “diversity” has become incoherent in many ways. The Supreme Court’s majority opinion is absolutely brutal in making this point:
For starters, the categories are themselves imprecise in many ways. Some of them are plainly overbroad: by grouping together all Asian students, for instance, respondents are apparently uninterested in whether South Asian or East Asian students are adequately represented, so long as there is enough of one to compensate for a lack of the other. Meanwhile other racial categories, such as “Hispanic,” are arbitrary or undefined. See, e.g., M. Lopez, J. Krogstad, & J. Passel, Pew Research Center, Who is Hispanic? (Sept. 15, 2022) (referencing the “long history of changing labels [and] shifting categories . . . reflect[ing] evolving cultural norms about what it means to be Hispanic or Latino in the U. S. today”). And still other categories are underinclusive. When asked at oral argument “how are applicants from Middle Eastern countries classified, [such as] Jordan, Iraq, Iran, [and] Egypt,” UNC’s counsel responded, “[I] do not know the answer to that question.” Tr. of Oral Arg. in №21–707, p. 107; cf. post, at 6–7 (Gorsuch, J., concurring) (detailing the “incoherent” and “irrational stereotypes” that these racial categories further).
Indeed, the use of these opaque racial categories undermines, instead of promotes, respondents’ goals. By focusing on underrepresentation, respondents would apparently prefer a class with 15% of students from Mexico over a class with 10% of students from several Latin American countries, simply because the former contains more Hispanic students than the latter. Yet “[i]t is hard to understand how a plan that could allow these results can be viewed as being concerned with achieving enrollment that is ‘broadly diverse.’” Parents Involved, 551 U. S., at 724, 127 S. Ct. 2738, 168 L. Ed. 2d 508 (quoting Grutter, 539 U. S., at 329, 123 S. Ct. 2325, 156 L. Ed. 2d 304). And given the mismatch between the means respondents employ and the goals they seek, it is especially hard to understand how courts are supposed to scrutinize the admissions programs that respondents use.
(Students for Fair Admissions, Inc. v. President & Fellows of Harv. Coll. (2023) ___U.S.___ .)
Clearly, it isn’t “diversity” that universities are concerned about. Instead, their object is to prefer some groups rather than others.
2. Race-Based Admissions Programs are not Narrowly Drafted.
Likewise, the proponent of the racial program has the burden to demonstrate that the program accomplishes the compelling government interest. This is impossible to do because (a) the definition of diversity is incoherent and (b) the benefits that are supposed to accrue from diversity are nebulous and immeasurable.
Further, the evidence showed that Harvard was operating a de facto quota system. The Court pointed out that Harvard amazingly managed to keep a “tight band” of African Americans ranging from 10% to 12% in the school for a decade. Someone clearly had their thumb on the scale, as suggested by the blatant racial stereotyping in emails among Harvard admissions officers.
In other words, Harvard was effectively operating a quota system in all but name.
In addition to these problems, the Supreme Court found that Harvard and UNC did not have “narrowly drafted” programs because their programs had no ending date. The Supreme Court expanded on Justice O’Connor’s statement that each college’s program had to have an ending date to a generalized criteria that all colleges were subject to the twenty-five-year expectation that Justice O’Connor had adumbrated in the Grutter decision. Since Harvard, UNC, and society, in general, were no closer to ending race-based discrimination in college admissions than they were in 2003, the Court concluded that the “narrowly drafted” element had not been shown.
I thought initially that this was a bit of slick lawyering, and not in a complimentary way. In retrospect, I now understand that the point is that a governmental program that imposes racial discrimination on some people to benefit others must work. If the program doesn’t work, then it may make people feel good, but that isn’t justification for racial discrimination. If someone told us that child sacrifice would make apple trees grow golden apples, after implementing a policy of child sacrifice, we might look at apple trees. If we saw an absence of golden apples, we would be justified in thinking the purpose of child sacrifice was not to get golden apples. Similarly, since we have been told that somehow racial discrimination in colleges is intended to improve the economic status of BIPOCs as a class vis a vis “whites” as a class, we might take a look at the relevant data. Since we see — or are being told — that there has been no change, we can conclude that whatever the reason for racial discrimination, racial discrimination in college admissions is not working and will never work.
3. The Constitutional Default is Colorblindness.
Racial quotas — any discrimination based on ancestry — should be noxious to Americans. As the Court noted: “Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Hirabayashi, 320 U.S., at 100.” (Regents of Univ. of Cal. v. Bakke (1978) 438 U.S. 265, 290–291 [98 S.Ct. 2733, 2748, 57 L.Ed.2d 750, 771].) It may well be that our elites want more power to craft elites in their own image, and meritocracy allows potentially disruptive populations to force their way into the elites, but if we want to remain free and equal, elite institutions must remain open.
Apart from the appointment of conservative justices, this review of legal history should suggest that racial discrimination post-Brown had essentially played itself out. I’m sure that DEI consultants weren’t bothered by cognitive dissonance, but the rest of society is. Polls and referendums have repeatedly shown that Americans don’t like racial discrimination, even “benign” racial discrimination.
Americans really think that this is and ought to be a colorblind country.
IV. A Return to Plessy.
The interesting thing is that the Progressives are asking for a return to Plessy. They have a race-conscious view of the Fourteenth Amendment, just like the Plessy majority had. They think that their approach is benign, but so did the Plessy Court. They want to lower the standard of review so that programs that advantage their preferred races will survive judicial review, but, again, the Plessy Court used the most tolerant standard — rational basis — to advance the “social interests” of the “dominant race.”
The dissent would have us return to the majority opinion, but this time — this time — they would get it right.
In contrast, it is the majority in Students that returns us to Justice Harlan’s dissent in Plessy. Harlan was right; we know that. We ought to take what we’ve learned and make use of it.
In contrast, the dissent entirely ignores Powell’s caution from 1978 that defining racial classifications is virtually impossible. Groups that are dominant today may not be dominant thirty years from now. Progressives have artificially created a “white” population by liquidating Catholic ethnics, Jews, Mormons, and other populations who may not see themselves in racial terms. A Catholic of Irish descent may have more in common with a Catholic of Hispanic descent than with a white atheist.
We can see the problems with racial classifications. We can also see the problems with the return to Plessy. Ibrahim Kendi’s “How to be an Anti-Racist” has some sections in it that gesture at “separate but equal.” In this case, though, the separate but equal portions are university departments, such as Black Studies. We have also seen the emergence of “neo-segregation,” where racial groups have separate graduations or separate activities. These developments seem to vindicate the sociological model Plessy v. Fergusson was based on. The Plessy decision had explained:
We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. The argument necessarily assumes that if, as has been more than once the case, and is not unlikely to be so again, the colored race should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the white race to an inferior position. We imagine that the white race, at least, would not acquiesce in this assumption. The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits and a voluntary consent of individuals. As was said by the Court of Appeals of New York in People v. Gallagher, 93 N.Y. 438, 448, “this end can neither be accomplished nor promoted by laws which conflict with the general sentiment of the community upon whom they are designed to operate. When the government, therefore, has secured to each of its citizens equal rights before the law and equal opportunities for improvement and progress, it has accomplished the end for which it was organized and performed all of the functions respecting social advantages with which it is endowed.” Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.
(Plessy v. Ferguson (1896) 163 U.S. 537, 551–552 [16 S.Ct. 1138, 1143, 41 L.Ed. 256, 261].)
Except for the race being excluded, aren’t Ibrahim Kendi and the Plessy majority on the same page?
Isn’t the dissent arguing that “legislation is powerless to eradicate racial instincts…and the attempt to do so can only result in accentuating the differences of the present situation,” which is why we need a permanent regime of racial discrimination? Doesn’t the attack on “whiteness” by woke academics mirror the assumption of Plessy that the races are innately hostile to each other and cannot live together in harmony?
If they aren’t making that argument, then they need to explain why three generations of racial discrimination — a period longer than Jim Crow — haven’t seen the end of the need for racial discrimination.[21]
When will the need for racial discrimination end?
The greatest irony of the last seventy years is that the people who think they are the “anti-racists” are the ones who are most set on recreating racist constitutional law.
The “We are all going to die of RACISM!!!!!” Update.
The Volokh Report advises that a district court in Tennessee has followed the Students’ decision and struck down a Small Business Administration program that awarded funds based on race. The court found that there was no compelling interest in race discrimination and that the SBA had failed to show real evidence really linking the program to the supposed goal.
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[1] This statement will probably be characterized as pure hyperbole by the defenders of race-based policies. Such characterizations would be based on ignorance: well-known Harvard law professors have advised the president to ignore the Students decision based on the special pleading that this decision is illegitimate for a variety of reasons that do not involve the accepted role of the court or the merits of the argument. (See “King Biden and the Vizier from Harvard, William Otis, July 20, 2023. ) Likewise, educational bureaucrats have stated their intention to continue the principles of race discrimination in educational admissions. (See CVHEC Directors Message dated July 19, 2023.)
[2] The Equal Protection Clause addresses all manner of distinctions between persons and this Court has held that it implies different degrees of judicial scrutiny for different kinds of classifications. So, for example, courts apply strict scrutiny for classifications based on race, color, and national origin; intermediate scrutiny for classifications based on sex; and rational-basis review for classifications based on more prosaic grounds. See, e.g., Fisher, 579 U. S., at 376; Richmond v. J. A. Croson Co., 488 U. S. 469, 493–495, 109 S. Ct. 706, 102 L. Ed. 2d 854 (1989) (plurality opinion); United States v. Virginia, 518 U. S. 515, 555–556, 116 S. Ct. 2264, 135 L. Ed. 2d 735 (1996); Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356, 366–367, 121 S. Ct. 955, 148 L. Ed. 2d 866 (2001).
(Students for Fair Admissions, Inc. v. President & Fellows of Harv. Coll. (2023) ___U.S.___ .)
[3] My late law partner was a Canadian citizen with a Green Card. He was permitted to try cases before juries that he was barred from serving on. This, of course, meant that I was periodically called down for jury service — which I was glad to do — and he got a free ride. Intermediate scrutiny can lead to some weird results.
[4] And that is one point for you on the Multistate portion of your state’s bar exam!
[5] “Separate” by Steve Luxenberg provides an accessible and engaging survey of the characters and background of the Plessy case. I recommend it.
[6] Actually, the Plessy Court says as much: “So far, then, as a conflict with the Fourteenth Amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and with respect to this there must necessarily be a large discretion on the part of the legislature.”
(Plessy v. Ferguson (1896) 163 U.S. 537, 550 [16 S.Ct. 1138, 1143, 41 L.Ed. 256, 260].)
[7]Today, we properly say “Yikes!!!” when we read this but note that this argument is made by the plaintiff, i.e., Homer Plessy.
[8] Basically, Plessy treated racial regulation the way we treat business regulations. It was not until 1938 that the Supreme Court developed the idea that regulations involving “discrete and insular minorities” should be given more intense scrutiny than was given to “ordinary commercial transactions.” (See United States v. Carolene Products Co. (1938) 304 U.S. 144, 152 [58 S.Ct. 778, 783, 82 L.Ed. 1234, 1241].)
[9] Justice Harlan’s grandson, John Marshall Harlan II, would join the Supreme Court in 1955 to help carry out his ancestor’s legacy of building a color-blind America.
[10] The answer is “yes.” In Bakke, Justice Powell reached back to Sweatt to find a hook for his doctrine of diversity. (Regents of Univ. of Cal. v. Bakke (1978) 438 U.S. 265, 313 [98 S.Ct. 2733, 2760, 57 L.Ed.2d 750, 786].) The law is fluid like this: thin threads develop into main branches and main branches run into dams and coulees.
[11] Sweatt was decided in conjunction with McLaurin v. Oklahoma State Regents for Higher Education (1950) 339 U.S. 637 [70 S.Ct. 851, 94 L.Ed. 1149]. McLaurin involved a black student admitted to Oklahoma law school who was required to never interact in any way with any white student. One has to wonder whether in 1950 this kind of nightmarish treatment of a human being raised uncomfortable parallels with what had been discovered about the Nazi treatment of Jews five years before. The decision of a unanimous Supreme Court — including the former Klan member Justice Black and the Jewish Justice Frankfurter — was that the student had been denied equal protection. History is complicated. It also calls in the question of moderns who think personal history is destiny — Black, a former Klan member, sided with Frankfurter, a Jew, to rule in favor of a black law student being treated like a Jew in Nazi Germany.
[12] Alan Bakke started at UC Davis medical school in 1979, which was a year after I had started at UC Davis as an undergraduate and at the same time that I began applying for law school admission with various University of California law schools. We all have Forest Gump moments like this. For what it’s worth, as a Catholic ethnic son of a mustang enlisted Navy man and a working-class family, I was wait-listed with UC Berkeley three times and didn’t get my denial letter until after I had started at UCLA law school. Later I would learn that the UC’s were still unconstitutionally using race in admissions under the standards of Bakke.
[13] However, the application of the strict scrutiny standard was still debatable. The lower courts had refused to apply strict scrutiny. Powell’s opinion spends time explaining that “[All] legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny.” Korematsu, 323 U.S., at 216. (Regents of Univ. of Cal. v. Bakke (1978) 438 U.S. 265, 291 [98 S.Ct. 2733, 2748, 57 L.Ed.2d 750, 771].) The citation of Korematsu is not without unintended irony.
[14] One is justified in wondering whether Powell would have been as sanguine about a government program that expressly made the recruitment of religious minorities like Catholics, Mormons, or Santerians in order to obtain the goal of diversity. Certainly, religious perspective can broaden diversity. Catholics are 25% of the population and are probably underrepresented in Ivy League Schools. However, given the constitutional prohibition on “establishment of religion,” such an approach might seem problematic. Under the 14th Amendment, race is more like religion than it is like “being from California.” Race and religion exist; they just can’t constitutionally be used by the government to classify citizens or condition benefits.
[15] The irony is that in rejecting a “two-tier” theory of the Fourteenth Amendment, Powell warned that change in racial identification and demographics was inevitable.
[16] Note also that diversity in 1978 could mean regional diversity; today, “diversity” means race for all practical purposes.
[17] For what it’s worth, Rehnquist was the only justice who was part of the Bakke decision to remain on the court until the Grutter decision.
[18] Anyone with an ounce of sense has always known this. The great virtue of the Students decision is that it gives us permission to say “The emperor has no clothes.”
[19] The development of the concept of “BIPOC” — Black, Indigenous and People of Color — is evidence of this. The group that collapses Koreans and Punjabis into the category of “Asian” and Brazilians and people whose ancestors came from Spain into the category of “Hispanics” in the name of “diversity” now wants to collapse Koreans, American Blacks, Nigerians, Columbians, and Pakistanis into the category of “BIPOC,” again, in the name of “diversity.” Thus, fifty African Americans from upper-middle-class households would be more “diverse” than thirty people whose ancestors spanned the globe from Japan to Grenada under this rationale because, apparently, BIPOC people are fungible within the class of BIPOC. Clearly, whatever “diversity” means to DEI administrators, it doesn’t mean “diversity.”
[20] To be clear, the Supreme Court rejects as racial stereotyping the argument that some people bring a particular viewpoint because of their race or skin color:
“Respondents’ admissions programs are infirm for a second reason as well. We have long held that universities may not operate their admissions programs on the “belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue.” Grutter, 539 U. S., at 333, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (internal quotation marks omitted). That requirement is found throughout our Equal Protection Clause jurisprudence more generally. See, e.g., Schuette v. BAMN, 572 U. S. 291, 308, 134 S. Ct. 1623, 188 L. Ed. 2d 613 (2014) (plurality opinion) (“In cautioning against ‘impermissible racial stereotypes,’ this Court has rejected the assumption that ‘members of the same racial group — regardless of their age, education, economic status, or the community in which they live — think alike . . . .’” (quoting Shaw v. Reno, 509 U. S. 630, 647, 113 S. Ct. 2816, 125 L. Ed. 2d 511 (1993))).”
(Students for Fair Admissions, Inc. v. President & Fellows of Harv. Coll. (2023) ___U.S.___ .)
[21]Jim Crow lasted from Plessy (1893) to Brown (1953) or sixty years. Brown was decided seventy years before Students (2023.)
