As the U.S. Supreme Court proceeds blindly down its path of race neutrality and colorblindness in its drive to end affirmative action in college admissions, it fuels concrete realities of racial inequality. Its recent rulings in the Harvard and University of North Carolina (UNC) cases assure the perpetuation of that inequity, which will likely cause sweeping damage in the nation’s labor and housing markets, community development programs, health care industries, and other venues.
Throughout, the decisions — along with the three concurring opinions by Justices Clarence Thomas, Neil Gorsuch and Brett Kavanaugh — repeatedly label the Harvard and UNC affirmative programs as “discrimination” violating the race neutral and colorblind requirements of the Equal Protection Clause of the 14th Amendment and Title VI of the Civil Rights Act of 1964, which bans discrimination in any program receiving federal financial assistance. But these rules require no such color blindness. In fact, the primary objective of Congress in passing the 14th Amendment and Title VI was to change the material conditions facing racial and ethnic minorities, particularly African Americans, not to lock in some formal notion of neutrality detached from the context in which they were promulgated.
As Justice Sonia Sotomayor wrote in her dissent: “Proponents of the Amendment declared that one of its key goals was to ‘protect the black man in his fundamental rights as a citizen with the same shield which it throws over the white man.’… That is, the Amendment sought ‘to secure to a race recently emancipated, a race that through many generations was held in slavery, all the civil rights that the superior race enjoy.'”
The court majority’s worshipping at the altar of colorblindness simply freezes the status quo, bakes in historical inequities and assures their perpetuity.
More problematic is where the logic of the court’s argument might lead going forward. Roberts argues for the majority that “what cannot be done directly cannot be done indirectly.” Does this mean that many of the alternatives to race-conscious approaches to diversity that have been proposed might also be challenged?
Several observers have called for socio-economic preferences to avoid constitutional issues surrounding race. Other proposals include admitting a fixed percentage of top high school graduates that would help students from segregated schools; reaching out to first-generation college students; recruiting at inner city schools; the elimination of legacy admissions and other race-neutral approaches. But it is possible that these programs will be challenged as simply indirect, backdoor, still race conscious and therefore unconstitutional efforts to achieve racial diversity. No doubt such challenges are already being prepared.
And it is not just college admission programs that could be affected. Thomas wrote in his concurrence that “the Fourteenth Amendment recognizes that classifications based on race lead to ruinous consequences for individuals and the nation … Consequently all racial classifications are inherently suspect.”
So what does this mean, for example, about corporate diversity efforts? Despite research demonstrating that more diverse workforces are more productive and profitable, they could and likely will be challenged as unconstitutional race-conscious efforts. The Wall Street Journal has already chimed in that “corporate diversity and equity programs that divide and classify by race should also be on notice that they will face legal challenges.” What about community benefits agreements that steer capital to traditionally underserved neighborhoods often targeting minority communities? Will special purpose credit programs be suspended? Will health care clinics set up by medical schools in low-income neighborhoods that are disproportionately nonwhite have to close? No doubt there will be legal challenges to all such initiatives. The future implications of this decision cannot be predicted precisely, but they are likely to be far-reaching.
Roberts concluded that “Eliminating racial discrimination means eliminating all of it.” This decision assures that it will now take longer to in fact end discrimination and create the colorblind world that many claim is the objective.
In her dissent Justice Ketanji Brown Jackson wrote: “It is no small irony that the judgment the majority hands down today will forestall the end of race-based disparities in this country, making the colorblind world the majority wistfully touts much more difficult to accomplish.”
This decision will perpetuate inequities that have long been baked into many venues of American life. Perhaps that is just the point.
Gregory D. Squires (squires@gwu.edu) is a research professor and professor emeritus in the Department of Sociology at George Washington University.
