They reached for tomorrow / But tomorrows more of the same

In its decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA), the Republican-appointed supermajority of the Supreme Court held that the use of race in the undergraduate admissions programs of Harvard College and the University of North Carolina was unlawful under Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment, respectively. Among other problems, Chief Justice Roberts’s opinion for the Court in SFFA hides what the majority justices are doing – hides how it is changing the applicable constitutional law, by misrepresenting that law – and its reasons for what they did may rest on what they themselves would call racial stereotypes and/or an unvoiced belief in the superiority of white people. 

The majority justices claim to be applying the rules from Supreme court precedents for evaluating equal protection challenges to race-based affirmative action in higher education admissions. The majority opinion says, using a past tense, that “we have permitted race-based admissions only within the confines of narrow restrictions” (emphasis added). Summarizing, it states: “University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and – at some point – they must end.” While it has the chutzpah to accuse Justice Sotomayors dissent (joined by Justices Kagan and Jackson) of disregarding stare decisis and “want[ing]” the Court’s equal protection law “to be different” than its precedent shows it to be and “wrench[ing that] case law from its context,” in fact, the majority is applying new rules, “moving the goal posts” as the dissent puts it at one point.

 

The changes in the governing law the majority opinion wreaks are apparent in its arguments against Harvard’s and UNC’s admissions programs. It contends that the defendant schools’ justifications for their consideration of race in admissions served purposes too “amorphous” to satisfy strict scrutiny – but that reasoning would equally have doomed the University of Michigan law school’s admission policy that the Supreme Court upheld in Grutter v. Bollinger in 2003, a case upon which the majority opinion leans heavily. And the majority’s amorphous purpose reasoning would seem wholly to preclude any use of applicant’s race in admissions, thus necessitating the overruling of Bakke v. Regents of the University of California (1978), GrutterFisher v. University of Texas at Austin (2013) (Fisher I), and Fisher v. University of Texas at Austin (2016) (Fisher II) – something the majority does not fess up to doing. And thus as the dissent in SFFA notes, “the Court does even attempt to make the extraordinary showing required by stare decisis” before overruling those decisions.

 

But overrule it necessarily does, as consideration of the majority opinion’s reasoning about a ban on using race as a negative makes indisputable. Without any quotation or even citation, the majority asserts that “our cases have stressed that an individual’s race may never be used against him in the admissions process.” Why did the majority maintain that Harvard’s and UNC’s admissions practices violated this stricture, even though the schools treated the race of certain underrepresented minority applicants as a plus in the admissions process? Because “[c]ollege admissions are zero-sum. A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.” This means that colleges and university cannot consider race at all in admissions. And that holding is incompatible with the holdings of BakkeGrutterFisher I, and Fisher II, necessarily overruling them. But because the Court, as the dissent accurately notes, does not attempt to justify this overruling, it may blunt the force of any criticisms it might endure. Were it widely understood by the public that, as with the Dobbs decision’s express overruling of Roe v. Wade last year, the Court with its new composition is again overruling constitutional precedent that has structured life in the U.S. for decades, the majority might be exposed to sharper objections from more quarters.

 

But not only does the majority opinion in SFFA mask what the majority is doing, its reasoning and lacunas therein also obscure why the Justices may be doing it. The majority deems it disqualifying that the policies at Harvard and UNC do not have a “logical end point” (quoting Grutter). The majority interprets those policies as “promising to terminate their use of race only when some rough percentage of various groups is admitted,” thereby “effectively assur[ing] that race will always be relevant.” (quoting City of Richmond v. J.A. Croson Co. (1995)). But how would that be the case? The majority apparently presupposes that it would never be the case that a race-blind admissions process could produce student bodies that, for example, approximately mirror the demographics of a given population (that of the state where a college is located, say, or that of the U.S. as a whole), even, I assume, in a future, racially egalitarian U.S. But why not? The Court has in the past criticized as “completely unrealistic” what it believed was the city of Richmond’s “assumption that minorities will choose a particular trade in lockstep proportion to their representation in the local population.” But why does the majority’s contrary decision not reflect an assumption – a “stereotype” about racial groups of a type seemingly condemned by the majority’s reasoning in this case – that they would, in an egalitarian society, not have similar interests in various fields?

 

One possible answer is that the majority believes that (non-Asian) minorities will never achieve at the levels that white people do, that (non-Asian) minority students would never (without consideration of race) be admitted to competitive universities on the “merits” at comparable rates. This is not an attitude unknown to U.S. Supreme Court justices, including one the SFFA majority treats as a reliable source on the meaning of the Equal Protection Clause, the first Justice Harlan. Harlan, who dissented from Plessy v. Ferguson’s upholding a state law requiring railroads to segregate black and white passengers on railroad cars (on the ground that separate but equal accommodations would satisfy equal protection). The majority quotes Justice Harlan’s Plessy dissent for the claim that “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Harlan, in the very passage the majority quotes (and in language the majority reproduces), was condemning legal measures reflecting a belief in a “superior, dominant, ruling class of citizens,” and a correlative belief in an inferior class, a “caste.” But when it comes to his actual racial views, the majority doesn’t recount them.

 

What else did Harlan say in his famed Plessy dissent (besides a detour about the inevitable alienness of “the Chinese race”)? “Every true man has pride of race, and under appropriate circumstances, when the rights of others, his equals before the law, are not to be affected, it is his privilege to express such pride and to take such action based upon it as to him seems proper.… 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.” 

 

If that is what they believe (and it could explain why they don’t think racial groups in American will ever even “roughly” be “qualified” for admission to at least elite universities), the majority justices may have learned not to say that part aloud, learned not to state publicly that the white race will always be dominant. They will omit this from their adulation of Justice Harlan. They will not repeat the mistake – condemned now by history – of people like Judge J. Whitfield Davidson, who in the wake of the Supreme Court’s decisions in Brown v. Board of Education (I and II) said publicly: “[T]he white man has a right to maintain his racial integrity and it can’t be done so easily in integrated schools.” But as a proposition about the beliefs of a majority of justices who have repeatedly made it harder to redress racial discrimination even in areas as fundamental as voting, who regard it (as the SFFA opinion quotes) as “‘sad’” were “each identifiable minority assigned proportional representation in every desirable walk of life” (emphasis added), and who seem utterly convinced that in educational achievement that would not be possible without race-based affirmative action, such sociological white supremacy is, sadly, not unthinkable.