The Supreme Court and American Values
This article is about a Supreme Court decision—actually, a companion set. These decisions haven’t happened yet, but I can fantasize, imagine, wish, desire. In a nutshell, I would like to see these decisions affirm equal protection under the law in much the same way that a similar decision affirmed free speech with a broad approach. Government can ensure a level playing field where we enjoy free speech and equal treatment; government can also allow for individual ingenuity, merit, opportunity, and motivation while resisting the urge to impose identity beliefs and practices.
The twin opinions are Students For Fair Admissions v. Harvard (Harvard) and Students For Fair Admissions v. University of North Carolina (UNC). The former involves a private university, the latter a public one. Both universities are alleged to have discriminated against Asian students in their admissions process based on a violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. UNC is also alleged to have discriminated against both white and Asian students through a violation of Title VI of the Civil Rights Act of 1964.
The Harvard and UNC complaints explain the race problem:
“Classifications of citizens solely on the basis of race are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality. They threaten to stigmatize individuals by reason of their membership in a racial group and to incite racial hostility.” Shaw v. Reno, 509 U.S. 630, 643 (1993)
As a consequence, racial classifications are highly disfavored and have been permitted only when there is a compelling government interest that cannot be met through race neutral means. In the educational setting, “diversity” is the only interest the Supreme Court has found compelling. Even then, the Supreme Court has mandated strict judicial scrutiny to ensure that an academic institution is actually pursuing that interest and that it is absolutely necessary to employ racial preferences in order to achieve a diverse student body.
Notably, “diversity” does not occur in any part of the United States Constitution.
Why “diversity” is seen as a boon to society, let alone an exception to race-neutrality, is somewhat of a mystery. A review of hundreds of studies in the Harvard Business Review by Frank Dobbin and Alexandra Kalev, “Why Diversity Programs Fail,” questions whether diversity programs really cure bias. The more perfidious form of bias, namely racism, is likely equally resistant to diversity programs:
Do people who undergo training usually shed their biases? Researchers have been examining that question since before World War II, in nearly a thousand studies. It turns out that while people are easily taught to respond correctly to a questionnaire about bias, they soon forget the right answers. The positive effects of diversity training rarely last beyond a day or two, and a number of studies suggest that it can activate bias or spark a backlash. Nonetheless, nearly half of midsize companies use it, as do nearly all the Fortune 500.
Such programs offer companies and public institutions some protection against lawsuits. They have performative value but fail to cure us of bias or racism.
Even where diversity practices and programs can be shown to have some benefit, the use of perceived, claimed, or imputed race may soon be found to fail constitutional muster.
The North Star of Free Speech
One could draw a parallel between the march to equality in Harvard and UNC and the Supreme Court’s arrival at a fulsome support of free speech. Yes, freedom of speech is in the Bill of Rights. However, the Supreme Court dilly-dallied over whether states could frame laws that would restrict freedom of speech in order to foster national unity. After deferring to state legislation, the Court finally rejected that deference in West Virginia State Board of Education v. Barnette (1943).
Students and teachers had been required to salute the flag. It was a Bellamy salute with an outstretched arm and an upturned palm. Refusal to salute would mean expulsion from school, which could then lead to parents being charged with a crime since students were unlawfully absent from school.
Students from a Jehovah’s Witness family were sent home for failing to salute the flag. Their religious beliefs held that God was above secular laws. The flag represented a graven image to them, violating a biblical command: “Thou shalt not make unto thee any graven image, or any likeness of anything that is in heaven above, or that is in the earth beneath . . . .” The Barnette Court could have limited its decision to the government’s overreach in commanding the Jehovah’s Witnesses to salute the flag. However, the Court went further in its analysis, framing it as one of free speech—the decision was broadened for all individuals to be able to speak freely regardless of governmental litmus tests, short of imminent danger.
[F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.
Recall that this decision came in the midst of WWII. The push for collective unity was reasonable, even admirable. However, the sine qua non of the Barnette decision was that collective unity could not compel individual consent.
We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.
The importance of the Barnette decision is exemplified by the Foundation for Individual Rights and Expression, both in its advocacy for free speech in universities and in its representation of students and teachers. However, the reach of this decision is limited to the individual versus the government—“government” in its broadest sense, including entanglement through the receipt of governmental funds.
The use of race as an admissions criterion in the Harvard and UNC cases has blossomed beyond the relief petitioned for by SFFA. The use of race now extends into the activities of one set of students against another, whether viewed individually or by a class, as well as into related activities between students, between faculty, between students and faculty, and between administrators, students, and faculty. Just as the Barnette case broadened its decision from the Jehovah’s Witness family and the West Virginia State Board of Education to all of government, so Harvard and UNC can broaden their decisions from the immediate parties involved to all of government. Race and freedom of speech are both key to what is often referred to as “the arc of American exceptionalism.”
The North Star of Racial Equality
What follows is an imagined Supreme Court opinion in the Harvard and UNC cases.
The American experiment recognizes the danger of concentrating power in a monarch, an aristocracy, or a mob. It is a system that diffuses power with checks and balances. This approach to government is not one of guarantees, but a methodology to optimize the values of life, liberty, and the pursuit of happiness. Those values are optimized individual by individual. Sectarian and secular collectives, especially political parties, were worrisome then as they are now. Collectives—whether expressed in a social group or imagined as an essential identity— can be vehicles for unity, but they can also become partisan and override the expression of individual minds and their pursuit of life, liberty, and happiness.
Our grand experiment had a birth defect: slavery. Slavery wasn’t mentioned in the Constitution until it was abolished after the Civil War. The promise of full equality was delayed with the emergence of Jim Crow laws. But our national will persisted with Civil Rights Act of 1964 and numerous Court opinions. Our mechanism for justice under the law brought us much closer to fulfilling a core tenet of our independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights . . .” We now have a national holiday to honor Martin Luther King, Jr., who called us to be colorblind and to judge others by the content of their character.
Some scoff at our American experiment. Its alleged failure is attributed to economic and racial injustice. Its economic engine, capitalism, is seen as a boon to some, but one that is unable to cure persistent economic inequality; others repurpose the economic complaint as one of racial inequality. Such unfulfilled goals, in their minds, call us to see other as oppressed and oppressors. We are mindful of our society’s imperfections; we are also mindful that our system of governance allows for social change within constitutional constraints. Such dissatisfaction led to an exception to equal treatment under the law; universities were granted a narrow exception for racial preferences in admissions with the hope that this narrow exception would help fix inequalities within this institution. Whether universities can satisfy these racial grievances by socially engineering the admissions process through “diversity” now seems doubtful. Such fixes to racial inequality likely entail major reforms in primary and secondary education, not to mention cultural factors that are entwined with structural ones.
We are mindful of the insight of Professor Glenn Loury, who has studied these disparities and has offered the following thoughts about affirmative action:
[I]f you want genuine equality, this is distinct from titular equality; if you want substantive equality, this is distinct from optics equality. If you want equality of respect, of honor, of standing, of dignity, of achievement, of mastery, then you may want to think carefully about implementing systems of selection that prefer a population on a racial basis. Such a system may be inconsistent over the longer term in achieving what I call genuine equality; real equality; substantive equality; equality of standing, dignity, achievement, honor, and respect.
There are those, however, who are unworried about this outcome and who desire to push forward beyond what the Constitution allows. Such enthusiasm for social change ignores constitutional limits on what is lawful, either those protecting viewpoint diversity as expressed in Barnette or those protecting individual equality before the law, regardless of race, color, creed, religion, or sex. This enthusiasm requires us to now set forth the guardrails for how social change must comply with the Constitution and continue the American experiment.
Consider the enthusiasm for “equity” as the new metric for social change:
Social and economic justice and racial equity requires that we make a material difference in the lives of library workers and patrons who have for too long been denied power and opportunity on the basis of race, gender, sexuality, national origin, spoken language, and disability. As ALA president, I will direct resources and opportunities to a diverse cross section of the association and advance a public agenda that puts organizing for justice at the center of library work.
We notice that “equity” now often substitutes for “affirmative action,” as if this new word absolves what we now forbid in the old word. We are concerned that pretextual language and practice will use new discrimination to cure any current discrimination. That is not how the Constitution, nor the American experiment, works, or how they are intended to work.
Pretextual racial discrimination can be seen in university admissions practices, as in the Harvard and UNC cases, in DEI statements to screen out otherwise qualified individuals, in racial affinity groups, in the disbursement of funds to equity officers, in library audits, in the training of medical professionals, and so on.
We hold that the racial prohibition in the 14th Amendment applies in the same way, regardless of the words used to describe such behavior. This racial discrimination is repugnant to the Constitution and cannot be tolerated.
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