The Constitution Is Still Alive at the Supreme Court

Race-based admissions (and exclusions) are outlawed, but is the Court's language strong enough to ferret out and defeat the coming tricky work-arounds?

In what I regard as a solid opinion, Chief Justice Roberts wrote for a 6-3 majority today that the Equal Protection Clause forbids the consideration of race in college admissions. This result was expected. The main question since oral argument has been whether the specific language of the Court’s opinion would allow enough wiggle room for race-obsessed college administrators to continue to use race but disguise it. The answer is: We don’t know but we’re going to find out quickly. The Court’s opinion is better than I expected, but may not be enough to defeat the “creativity,” shall we say, of the educational establishment — an establishment that is as ingenious and deceptive as it is hell-bent to preserve its present regimen of “whites-and-Asians-stink” racial preference.

In a post from last month, “Making Race-Blind Admissions Stick,” I suggested that the Court adopt the following language:

“Our holding today that racial preference is impermissible in college admissions should not be misunderstood. It does not mean that racial preference is acceptable if well hidden or cleverly disguised. It has long been a staple of the law that a party may not do by indirection that which it is forbidden to do directly. That injunction applies with full force here.

“In order to enforce the color-blind admissions policy we have held the law demands, lower courts will need to be particularly vigilant for such preferences when either hidden outright or presented in proxy form. Accordingly, we hold that, when a school’s admissions policy is challenged as racially weighted, and there is a reasonable basis to believe the policy either explicitly violates today’s holding, or has been designed either in anticipation of it, or in reaction to it, there will a rebuttable presumption that race remains a factor. The school has the burden of overcoming that presumption by clear and convincing evidence that race and racial preference did not, directly or indirectly, and do not, play any significant part in its admission process. If the school meets that burden, ordinarily it should prevail. If not, ordinarily the plaintiff should prevail.”

We did not get that today (although, very importantly in my view, we did get a nice echo of the line that a party may not do by indirection that which it is forbidden to do directly). What we got was this (emphasis added):

For the reasons provided above, the Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. Both programs 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. We have never permitted admissions programs to work in that way, and we will not do so today.

At the same time, as all parties agree, nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. See, e.g., 4 App. in No. 21–707, at 1725–1726, 1741; Tr. of Oral Arg. in No. 20–1199, at 10. But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today. (A dissenting opinion is generally not the best source of legal advice on how to comply with the majority opinion.) “[W]hat cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows,” and the prohibition against racial discrimination is “levelled at the thing, not the name.” Cummings v. Missouri, 4 Wall. 277, 325 (1867). A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race.

Many universities have for too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice.

With the Chief and Justice Kavanaugh — two justices who often like to soften what some see as the conservative majority’s hard edges — joining the opinion in full, this is strong language. If applied in good faith and with the force the Court obviously intends, it would indeed put an end to racial balancing in admissions.

But that’s a big “if.” It will depend principally on two things: Whether college administrators view their job as obeying the law, or instead continuing to obey the Masters of Woke; and whether the lower courts, when confronted with the inevitable challenges to what will become more elaborately disguised racial balancing schemes, follow the Court’s ruling or instead become inventive in manufacturing ways to subvert it.

Still, with all the doubt we cannot realistically escape, today’s opinion was a strong step forward for treating teenage college applicants — in other words, our children — as individuals rather than color-of-your-skin ciphers. Thank you, Chief Justice Roberts. And thank you — dare I say it? — Donald Trump.

UPDATE (6-29-23 at 3:20 EDT): My friend Ann Coulter adds this half hilarious but half serious suggestion:

WANT TO GET RICH? Go to law school and spend the rest of your life suing the crap out of colleges and universities for continuing to discriminate on the basis of race. Expect MASSIVE RESISTANCE to today’s ruling. The entire educational establishment is about to embark on an unprecedented campaign of pretexts and subterfuges to continue discriminating against whites and Asians. And remember: Civil rights lawsuits allow punitive damages! These are deep-pocketed institutions, with gigantic endowments.

Ann has a good point, but the campaign against equal treatment for students won’t be “unprecedented.” The Christian Academies throughout the deep South in the late Fifties and Sixties, in response to Brown v. Board of Education, wrote the book on this one. It’s going to be something else to watch our nose-in-the-air Leftist friends copying their work.