The Supreme Court’s conservative majority may not be content to simply bar any consideration of race in the admissions decisions of most colleges and universities.
During oral arguments Monday in the challenges to affirmative action admissions policies at Harvard University and the University of North Carolina, it became clear that other efforts — from workplace diversity and inclusion policies, to reparations for slavery, even the military’s efforts to ensure racial equality within its ranks — could soon be seen as constitutionally and legally suspect in the court’s eyes.
Attorneys who urged the court to strike down the schools’ consideration of race — even as one of dozens of other factors — focused on the rationale Chief Justice John Roberts and others in the court’s majority have already embraced to roll back voting rights and desegregation efforts.
“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Roberts said in an oft-quoted 2007 ruling that cemented the color-blind theory of constitutionalism as a mainstay of the Roberts Court.
He clearly still holds that view, and during arguments we got a taste of what will happen if Roberts’s misguided reasoning is taken to its logical conclusion in a society that is anything but colorblind.
When attorney Seth Waxman defended Harvard’s policy because race is only a minor consideration among many other factors, Roberts retorted: “So, there’s only a little racial discrimination.” Later, Roberts asked if the consideration of race, even in the interest of promoting a diversity of views within the student body, only serves to promote racial “stereotypes.”
But the arguments also highlighted where the end of college affirmative action will lead next.
Take reparations. It’s ironic that both universities at issue not only have acknowledged their own brutal histories of participating in and benefiting from the enslavement of Black people, they are also engaged in efforts to redress those actions.
When Justice Elena Kagan asked whether schools can consider if an applicant is a descendant of enslaved people, Patrick Strawbridge, who represented those challenging UNC’s admissions policy, said such a fact “clearly looks like a proxy for race.”
Consider that. If it is deemed constitutionally and legally impermissible for public universities like UNC or private schools that, like Harvard, receive federal funding to consider the history of slavery at their institutions, challenges to these reparations programs will surely follow. And under Roberts’s theory, they would have a shot at being successful.
But it won’t stop there. Since the 2020 murder of George Floyd and the ensuing reckoning with persistent institutional racism in nearly every aspect of American life, workplaces across the nation began prioritizing diversity and inclusion. But how can that be done without considering race? And if those workplaces are either in the public sector, or are private companies that, say, are federal contractors, won’t those efforts be challenged as constitutionally suspect too? You bet.
“If you’re a judge and you want to have a diverse set of clerks, do you think a judge can’t think about that in making clerkship decisions?” Kagan asked, after asking similar questions about police departments and hospitals.
“That is an admirable goal,” answered attorney Cameron Norris, who represented the challengers to Harvard’s policy. “I don’t think a judge can implement that goal by putting a thumb on the scale against Asian applicants or giving a big preference to Black or Hispanic applicants.”
US Solicitor General Elizabeth Prelogar warned that a ruling against the universities would harm the military’s ability to ensure diversity, something she notes is more than just a fundamental interest but also a national security issue. Roberts warned that she might want to distinguish service academies from her argument “rather than … be bound by whatever we say with respect to the other universities.” She noted that ROTC programs at universities will still be affected, but Roberts’s warning is certainly a signal of what the court will do not only in the current cases, but in the future challenges to military recruitment programs.
This slope isn’t just slippery. It is a trap door to any institution that understands race still matters in our society.