SCOTUS Must Go for the Heart of the Race State

A halfway decision in SFFA might make things worse

Within a few months, it’s likely that the Supreme Court will eliminate the explicit consideration of race in college and university admissions in the consolidated cases of SFFA v. Harvard and SFFA v. UNC. This is a big deal, and should be celebrated, if for no other reason than it pushes the law in the right direction. At the same time, while listening to the oral arguments, I got a sinking feeling that the coming decision may have certain unintended consequences as a result of not going far enough. This could lead to institutions that are less explicitly conscious of race, but more left-wing and less meritocratic due to a desire to indirectly take it into account. If this is the end result of SFFA, it will be the latest in a long line of Supreme Court decisions that sought to push back race- and gender-based governance while only making it stronger. In order to get around this problem, the Supreme Court should make clear that attempts to achieve a racially balanced student body are themselves in violation of the Civil Rights Act and the Equal Protection Clause.

Imagine that there was a Southern municipality with a history of discriminating against black people. It is taken to court, at which point a judge decrees that while the city cannot simply refuse to hire blacks, it’s fine for it to only recruit from white areas in hopes of achieving a certain demographic composition of its workforce. This would never be accepted. The principle of disparate impact of course goes much further than this — practices that have the effect of excluding racial minorities from a job or other kind of benefit can be prohibited regardless of the intent of the accused.

The oral arguments in SFFA went in a worrying direction, as there appeared to be an assumption that it would be preferable if universities could use race neutral means in order to achieve diversity. But if racial discrimination is against the law, why should a government institution or entity that receives state funding be allowed to have any preference with regards to its own racial composition? What does it matter if discrimination occurs at the level of high-level institutional policy or the consideration of individual applications? As Justice Sotomayor noted when questioning the attorney for SFFA, socioeconomic and other kinds of preferences that have been proposed are nothing more than “subterfuges to reaching some sort of diversity in race.”

For decades, the Supreme Court has explicitly rejected the idea that the Constitution creates different standards for judging the permissibility of racial discrimination depending on which group victims belong to, that is, making a distinction between “benign” and “invidious” discrimination. For it to bless the use of race neutral means to achieve diversity, when it would never accept racial balancing that sought to disadvantage blacks and Hispanics, would make a mockery of any other language supporting color-blind ideals.

In the past, we have found that halfway, moderate judicial decisions are often worse than letting the racial spoils system operate out in the open. For example, City of Richmond v. J.A. Croson Company (1989) found that a state or local government entity cannot have racial set-asides in contracting unless it proves a history of discrimination in its own jurisdiction against the group gaining an advantage. This simply produced a cottage industry of taxpayer funded studies purporting to show that such programs were legal. Adarand Constructors, Inc. v. Peña (1995) required racial set-asides at the federal level to be judged by the same “strict scrutiny” standard.

A decade later, the US Civil Rights Commission reported that the latter decision was for all practical purposes being ignored by federal agencies, as they simply produced paperwork to continue justifying the same policies when necessary. Croson and Adarand were supposed to take us towards color-blindness governance, but their standards have in practice become a jobs program for social scientists willing to tell government bureaucrats what they want to hear. 

Justice Sotomayor argues that Harvard can maintain higher academic standards if allowed to consider race directly rather than by proxy

Similarly, conservative judges have ensured that there cannot be explicit racial quotas in government hiring, while leaving the disparate impact standard intact. This has meant that we have in many cases gotten rid of almost any standards for selecting police, firefighters, and bureaucrats in order to achieve balance without practicing reverse discrimination against any one individual. An explicit quota system would at least get you the best from within each racial category. As things stand, any kind of civil service exam is legally suspect, under the same logic that is currently eliminating standardized tests in university admissions.

It appears that we may be headed to a similar decision in SFFA. An attorney for the plaintiffs argued for an alternative system in which Harvard could try to achieve racial diversity indirectly by granting more socioeconomic preferences. As Justice Sotomayor, once again getting to the heart of the matter, pointed out, the average SAT of Harvard would decrease under that plan, therefore putting her in the unexpected position of arguing to uphold higher academic standards against critics of affirmative action, who would do away with them. This line of questioning hints at what might end up being the unintended consequence of SFFA striking a blow against explicit preferences — schools and universities may become less meritocratic as they seek to somehow remain diverse without considering race at the individual level. They may even become more conscious of race, as they may have to remake themselves in order to achieve goals and benchmarks that they can no longer reach for directly. This arguably was the end result of Gratz and Grutter, and the dynamic at work explains a paradox of recent decades: the Court has moved right on issues like affirmative action, while our institutions have become more and more obsessed with identity.

The experience of California, where affirmative action was banned by referendum, is also instructive. In recent years, UCSD has started rejecting more students from largely-Asian high schools and accepting more from those that are largely Hispanic. Under a narrow ruling in SFFA, this would be legal, as long as the university could argue that it was only using some criterion that was a proxy for race, rather than using race to judge the applications of specific individuals. The California system has already eliminated standardized tests in admissions, but a broad ruling in SFFA would make its life more difficult by threatening funding for the state if there’s even a hint of racial favoritism. Of course, nothing can ultimately stop California from eliminating merit completely and getting diversity through something like a lottery system while giving some other justification for what it is doing, and this appears to be the path it is on, but other institutions and systems would hopefully make a different decision. At some point, if there is variation across institutions, one should have some faith that markets will in the long run reward the graduates of those that more strongly consider merit.

For too long, institutions have been allowed to operate contrary to the text of the Civil Rights Act, the common understanding of the law when it was passed, and the plain meaning of the Fourteenth Amendment. Entire careers, fields of research, and business models have been built on the idea that citizens should be constantly classified and judged based on race.

One judicial decision will not uproot this entire system. But for those of us that believe there is a moral and legal imperative to begin the process of doing so, a Supreme Court ruling that bans indirect attempts to achieve racial balancing would be sure to place additional hurdles in the path of advocates of woke institutions.

The point of this essay is not to argue that all is hopeless, since ideologues in positions of power will just do whatever they want anyway. I believe that it is possible to create a world where institutions belonging to or funded by the government have a strict taboo on considering race in decision-making, in the same way that it is unimaginable that the Department of Transportation would be collecting statistics on how many Jews or Catholics it employs. And that if we did create this world at the level of policy, it would have massive downstream cultural effects, similar to how civil rights law originally created wokeness.

I still think that banning explicit racial discrimination will have a net positive result, as not every institution effected will be as willing as certain elite universities are to sacrifice every other institutional goal and value for the sake of having the correct racial makeup. That being said, anti-wokes must be intelligent in which policies they pursue and courts should think carefully about the impacts of their decisions. The history of Supreme Court jurisprudence in this area shows that halfway measures can sometimes lead to unintended consequences and ultimately backfire.