WU: The Beginning of the End for Racial Preferences

Last Thursday, June 29, the U.S. Supreme Court released its ruling in Students for Fair Admissions v. Harvard College, which it bundled with the University of North Carolina (UNC) case, putting an end to race-based affirmative action in college admissions. Framing the decision as one that embraces “the transcendent aims of the Equal Protection Clause,” America’s highest court opines that both Harvard and UNC violated the Fourteenth Amendment by failing to practice strict scrutiny and by employing race as a negative factor.

Endemic political polarization has reared its ugly head in the aftermath of this historic decision, which clarifies previous rulings from Bakke to Fisher II and restricts the legal parameters surrounding the use of race in academic admissions. On the one hand, supporters of colorblind equality and merit-based college admissions celebrate the overturning of 45 years of legal precedent that had permitted race-conscious considerations. On the other hand, the progressive camp, led by President Biden and Harvard President-elect Claudine Gay, condemned the decision as a major setback for “diversity” and “racial justice.”

Despite all the weeping and gnashing of teeth, one thing is clear: U.S. colleges and universities can no longer consider race with impunity when recruiting students and expect to get away with it.

The License to Racially Discriminate Expires

Chief Justice John G. Roberts, who delivered the single majority opinion for both cases, is crystal-clear in the statement that both Harvard and UNC have used admissions programs that “cannot be reconciled with the guarantees of the Equal Protection Clause, … lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.”

While it doesn’t override universities’ freedom to define their core missions, the ruling revokes the unjustified authority granted to them in case precedent. The court reasons, comporting with the main argument in my group’s amicus brief in support of Students for Fair Admissions, that “any deference [to universities that use race in admissions] must exist ‘within constitutionally prescribed limits,’… [which] does not imply abandonment or abdication of judicial review.” In other words, universities and colleges cannot invoke academic judgments in their use of race-based programs to shield themselves from legal challenges. They cannot be both judge and jury, actor and director.

[More from Wenyuan Wu: “Thorny Trade-Offs After the Harvard and UNC Rulings”]

The long-established doctrine of strict scrutiny is further clarified in terms of timelines. For the five Justices who joined Chief Justice Roberts in the majority opinion, the time-limiting nature of race-conscious government action is a determining factor in past Supreme Court rulings that had permitted the use of race, because racial classifications of any sort are fundamentally antithetical to the heart of equal justice. In doing so, the ruling reaffirms Grutter’s repeated emphasis (on at least six separate occasions) on limiting race-based admissions programs:

It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education … We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

In their pronounced position against perpetuating race consciousness, the six Justices note that Harvard and UNC have frequently and disingenuously manipulated the exception to the rule as an excuse to discriminate indefinitely. They cite the “25-year” prediction as justification for prolonging race-based practices. But as Justice Roberts recognized, the 2028 end point was “oversold” because neither school believes that race-conscious admissions would be unnecessary beyond that point. In fact, in both oral arguments and amicus briefs in favor of the respondents, the idea that race-based programs don’t need an end point, but only periodic self-review, is expressly demonstrated.

Self-reflection and deferential autonomy cannot “make unconstitutional conduct constitutional.” With that, the court decisively revokes the schools’ license to discriminate on the basis of race.

“The Constitution prevails.”

In his concurring opinion, Justice Clarence Thomas proclaims: “the Constitution prevails.” This is after he admits the ebbs and flows in the Supreme Court’s commitment to the color-blind principle of equality. The celebration of equal protection is found throughout the court opinion. As Justice Roberts writes, “[t]he Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.”

For the first time in a long time, colorblind equality is given the constitutional backing it deserves and elevated to a level that clearly trumps the diversity argument so revered by the higher education establishment. The majority opinion validates this everlasting commitment by contrasting it with past and present dissenting opinions that disparage colorblindness. The opinion reads: “For what one dissent denigrates as ‘rhetorical flourishes about colorblindness,’ are in fact … defining statements of law.”

[More from Wenyuan Wu: “Our Forefathers’ ‘Sins’”]

Moreover, the ruling also pounces at the notion that race-based admissions are necessary for remedying historical wrongs, because the costs of doing so far outweigh the benefits.

Permitting “past societal discrimination” to “serve as the basis for rigid racial preferences would be to open the door to competing claims for ‘remedial relief’ for every disadvantaged group.” … Opening that door would shutter another – “[t]he dream of a Nation of equal citizens … would be lost … in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs.”

Justice Thomas echoes this argument: “Our Nation should not punish today’s youth for the sins of the past.” By asserting the superiority of the equal justice principle over the diversity case and the historical-remedy case, the ruling affirms “the letter and spirit of a constitutional provision whose central command is equality.”

The Fight Continues

In the long-overdue and much-deserved celebration of the Supreme Court’s decision, we ought not forget the modus operandi of the other side. Whether it is misinterpreting the court’s time-limiting permission of race-based admissions or stretching the under-defined and ever-expanding diversity narrative, the hegemonic bloc in American higher education—university presidents, academic bureaucrats, and their political allies—has been known to take a mile when given an inch.

Refusing to admit defeat, Harvard issued a rebellious statement in the wake of the ruling:

We write today to reaffirm the fundamental principle that deep and transformative teaching, learning, and research depend upon a community comprising people of many backgrounds, perspectives, and lived experiences. That principle is as true and important today as it was yesterday.

In California, where race-based affirmative action in state universities and colleges has been banned since 1996, the diversity train continues full steam ahead. The University of California system, which has utilized so-called “holistic review practices” to maintain student diversity, vows to share its “expertise and lessons learned” with their higher education partners “to achieve a higher education landscape that reflects the rich diversity of our nation.” In other words, it is eager to help others devise mechanisms to racially balance via proxies, just as it has done for the last 27 years. California Governor Gavin Newsom, who leads America’s most populous state where racial preferences are prohibited, issued a statement condemning “[r]ight-wing activists – including those donning robes.” The California State Legislature is even more brazen: in an effort to preempt a ruling unfavorable to race-obsessed progressives, Democratic state lawmakers have introduced a constitutional amendment, ACA-7, to repeal the state’s constitutional ban on race-based affirmative action.

The concluding section in the court ruling reserves some room for schools’ consideration of race. “[N]othing in this opinion should be construed as prohibiting universities from considering an applicants’ discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” But the court is also unambiguous about the big picture. “[U]niversities may not simply establish through application essays or other means the regime we hold unlawful today.” The opinion continues: “what cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows.”

Yet, we should expect that mainstream higher education will take this narrow wiggle room and expand it into a highway of discrimination, through ostensibly race-neutral alternatives that still amount to preferences, through the anti-merit test-blind movement, and through the continued ideological capture of America’s young minds. Advocacy for equal opportunity needs to be sustained after the ruling, which marks the beginning of the end for a practice that so patently opposes the touchstone of the American experiment, that an individual’s identity is not defined by the color of his skin, but by his “challenges bested, skills built, or lessons learned.”

Image: Adobe Stock


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