A pair of explosive cases involving race and college admission practices are now before the U.S. Supreme Court. These two cases involve whether Harvard and University of North Carolina have illegally discriminated against Asian-Americans in favor of other races.
To determine that, the Supreme Court will need to look back at its own precedents in this area.
How has the Supreme Court traditionally handled the use of racial preferences in college admissions?
The Court has said that race may be used as a factor—among several—for the purpose of achieving diversity of student population. However, in her majority opinion in a 2003 case, Justice Sandra Day O’Connor wrote “we expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” Well, that was 19 years ago but college admission boards argue that racial preferences are as important to achieving diversity today as ever.
So, “how do you know when you’re done?” asked Justice Amy Coney Barrett during oral argument. That’s a great question. Chief Justice John Roberts has also previously stated his desire to get our country out of this “sordid business, this divvying us up by race.”
Unfortunately, the key to removing our country from the use of racial preferences in matters such as these will be based upon how we define the word “equity.”
Recall that our Constitution safeguards—in fact, it’s the very promise of America itself—the principle that we are all equal under the law.
Equality. No one is above the law. “Lady Justice is colorblind” and not a “respecter of persons” because it doesn’t matter who each of us are, we are treated and viewed the same in the eyes of the law.
But there’s the rub.
Those who support the use of racial preferences aren’t doing so based upon notions of “equality.” The perverse, unconstitutional principle they invoke is “equity”—but there is a monumental difference between the two. “Equality” means we are all given the same opportunity. “Equity” means we are all guaranteed the same result.
That’s politically poisonous and unpatriotic.
It does great damage to America’s central premise of equal justice under law to engage in unequal treatment of different applicants to achieve a particular racial outcome. But it does more than that. As Justice Clarence Thomas pointed out “nowhere in any of the filings in this Court is any evidence that the purported ‘beneficiaries’ of this racial discrimination prove themselves by performing at (or even near) the same level as those students who receive no preferences.”
This may really be the point:
The individuals who make up these admissions committees at American colleges and universities are very often the same people who believe America is hopelessly and systemically racist. In their minds, there will never come a time to end the use of racial preferences in college admissions as long as any mere allegation of racism exists.
That was Justice Barrett’s point. We have already used racial preferences in this way at least back to the Supreme Court’s Bakke case in 1978, so “how do we know when we’re done?”
This is what it comes down to.
The Supreme Court’s long line of cases have made clear that when racial preferences are used—when Americans are categorized by race alone—the Court will employ its most demanding legal scrutiny of all, Strict Scrutiny. This means that even if a college has a very important reason—and perhaps the achievement of a diverse student body can be deemed a “compelling” reason—to favor or prefer some races of students over other races of students there literally must be no other way to achieve this goal than by using a racial classification.
But there always is.
The promise of America is most brilliantly and beautifully laid out in the Declaration of Independence. When Jefferson forged for the ages the principle that we are “created equal” he was presaging Rev. Martin Luther King’s clarion call that we be measured “not by the color of our skin, but by the content of our character.”
Our Supreme Court must find a way to preserve that principle in college admissions and across the politically charged and complex American cultural landscape.
Royal Alexander is a Shreveport attorney