Why Harvard's "originalist" argument in favor of racial preferences fails

During her confirmation hearing, Elena Kagan told the Senate Judiciary Committee that when it comes to interpreting the Constitution, “we are all originalists now.” Kagan was referring to the theory, long embraced by conservatives, that the meaning of various provisions of the Constitution is to be determined in accordance with the meaning they bore at the time they were promulgated.

Liberals aren’t really originalists now. But given the current composition of the Supreme Court, lawyers advocating liberal positions will, when possible, make originalist arguments in the hope of persuading conservative Justices to vote their way.

Ruth Marcus of the Washington Post reports on an example of this. In the two cases now before the Court where race-based admissions preferences have been challenged as violating the Fourteenth Amendment — the Harvard and UNC cases — briefs defending these preferences argue that the Fourteenth Amendment wasn’t understood by its authors as barring race-conscious remedies for discrimination.

Marcus writes:

“Absolute neutrality” when it comes to race “has never been a universal constitutional principle, either at the time of ratification or in the Court’s jurisprudence,” Harvard argues in its brief filed last month. “The Congress that adopted the Fourteenth Amendment … authorized numerous measures that benefited African Americans in the aftermath of the Civil War. . . .

One such measure was the Freedmen’s Bureau Act of 1866, which provided help for African Americans in everything from education to land distribution. When President Andrew Johnson vetoed the law creating the Freedmen’s Bureau, arguing that it helped “one class or color of our people more than another,” Congress overrode his veto.

The next year, Congress appropriated funds for “destitute colored people” in the District of Columbia, “rebuffing objections to the measure as ‘class legislation’ ‘applicable to colored people and not … to the white people,’” writes Harvard’s lawyer, Seth P. Waxman, a solicitor general under Bill Clinton.

But even if the Fourteenth Amendment is not an absolute ban against racial preferences adopted for the purpose of remedying past discrimination, this in no way supports the constitutionality of racial preferences adopted for the purpose of promoting racial diversity in classrooms and on campuses. And promoting diversity is the sole interest the Court has recognized as an acceptable justification for race-based admissions preferences.

The Freedmen’s Bureau had nothing to do with promoting diversity. It was about helping freed men gain a foothold in the aftermath of slavery and in the context of harsh ongoing racial discrimination.

It’s true, as Harvard points out, that one of its focuses was on education. However, the idea was to educate blacks, not to provide whites with the enriched classroom experience that exposure to “black” points of view allegedly affords them. The funds appropriated for “destitute colored people” also served a remedial purpose.

Thus, by relying on this history, the defenders of race-based preferences are moving the goal posts. Under the history Harvard describes, the compelling interest supposedly served by race-based admissions policies isn’t diversity — the rationale liberal college administrators have advanced for almost 45 years and that the Supreme Court has bought. Instead, the interest is in remedying of past discrimination.

And the discrimination purportedly being remedied is by society not by the universities. It has been ages since Harvard and UNC discriminated against blacks and none of the applicants it prefers can plausibly be viewed as victims of past discrimination by either university.

But even if it’s okay to move the goal posts, Harvard still misses the kick. Why? Because in the Bakke case, the Supreme Court rejected past discrimination as a justification for preferring blacks in college admissions. Justice Powell, who provided the fifth vote upholding the racial preferences at issue, said:

The State certainly has a legitimate and substantial interest in ameliorating, or eliminating where feasible, the disabling effects of identified discrimination. The line of school desegregation cases, commencing with Brown, attests to the importance of this state goal and the commitment of the judiciary to affirm all lawful means toward its attainment. In the school cases, the States were required by court order to redress the wrongs worked by specific instances of racial discrimination. That goal was far more focused than the remedying of the effects of "societal discrimination," an amorphous concept of injury that may be ageless in its reach into the past.

We have never approved a classification that aids persons perceived as members of relatively victimized groups at the expense of other innocent individuals in the absence of judicial, legislative, or administrative findings of constitutional or statutory violations.

And let’s remember that Harvard’s brief states that Bakke “should stand.”

The goal of remedying the effects of past societal discrimination didn’t cut it as compelling interest that could justify preferring black applicants to college with a centrist court in 1978, just 13 years after the passage of a landmark, game-changing civil rights act. What, then, are the chances that this justification will suffice before a conservative court nearly 60 years after passage of that act and with the removal of so many barriers to black advancement during that time?

Slim to non-existent, in my view.

The “diversity” rationale for preferring blacks to white and Asian applicants was a contrivance. The real reason for the preferences, I believe, was the same as Congress’ reason for establishing the Freedmen’s Bureau, to help blacks advance. The preferences were (and are) a misguided form of reparations.

But Powell’s opinion forced liberal college administrators to put all of their eggs in the diversity basket. To my surprise, the tactic has worked for 44 years.

Now, at last, there’s a good chance that “time’s up.” Thus, the need to rely on historical facts that point to a different rationale for racial discrimination — but one that the Court has already rejected.

As I said, this line of argument isn’t likely to succeed. But don’t expect left-liberal college administrators to give up. I read that if they lose the Harvard and UNC cases, some colleges may resort to granting preferences to the descendants of blacks who were enslaved. This has been billed as a form of “legacy admissions,” comparable to the ones colleges grant to relatives of alumni.

Perhaps this works as a pun, but not as an argument. Yet, that might be where the legal battle is headed next .

Henry Louis Gates, call your office.