Last month the Supreme Court sharply curtailed the use of race-based affirmative action in higher education. That’s a big deal, but it’s by no means the end of the campaign to eliminate race-conscious policies in education and elsewhere. Indeed, it’s just the beginning.
The next — and even more important — stage of the battle concerns the future of all race-conscious policymaking. Is it ever permissible for policymakers to pursue goals like racial diversity, even when they use laws and policies that don’t treat individuals differently based on race?
That might sound like an outlandish question even to ask, let alone to answer in the negative. But the first wave of legal cases posing this challenge has already arrived. They concern the admissions policies of highly selective public high schools that sought greater racial diversity through race-neutral means, like showing a preference for poor applicants. The plaintiffs argue that these policies are unconstitutional because, they contend, the goal remains racially discriminatory.
The implication of these cases for the future of higher education has already begun to attract some public attention — and for good reason. The high school admissions policies at issue are effectively the same as those that universities are likely to soon adopt to try to preserve diversity in the post-affirmative action era. Those institutions are almost certain to face similar lawsuits.
But less appreciated is the impact that this legal battle could have beyond school admissions. Race gaps characterize nearly every dimension of U.S. life: life expectancy, maternal mortality, employment rates, income, wealth, environmental exposures, criminal justice involvement and many others. Policymakers routinely seek to close these gaps, even when debating policies that aren’t directly about race, such as environmental regulations, health policy and criminal justice reform.
These legal cases represent a potential revolution that would severely constrain efforts to reduce racial disparities or promote integration. If courts were to accept the plaintiffs’ extreme vision of colorblindness, policymakers would be presented with an untenable choice: either not to pursue these goals at all — or to address them only surreptitiously, by masking their intentions.
Consider an ongoing constitutional challenge to the admissions policy of Thomas Jefferson High School for Science and Technology, an elite public school in Fairfax County, Va., where a majority of students are Asian-American. (I attended Thomas Jefferson, years ago.) In 2020, the Fairfax County School Board adopted reforms intended to address a longstanding controversy about how few Black and Hispanic students were getting in. It eliminated a high-stakes admission test, focusing more on students’ grades; reserved some slots for students from each middle-school district in the county; gave extra consideration to poor kids and English-language learners; and expanded the school’s class size to make more room for applicants of all backgrounds.
As intended, these changes improved Black and Hispanic representation. The Asian-American share of the class decreased, though Asian-American admission rates still far exceeded those of all other groups.
A group called the Coalition for T.J. sued, alleging unconstitutional anti-Asian discrimination. Its lawyers did not argue that the school board acted out of anti-Asian animus. Rather, they argued that the admissions were “zero-sum”: that efforts to improve Black and Hispanic representation necessarily came at some other group’s expense. When shifting from one race-neutral policy to another race-neutral policy, the plaintiffs contended, the school board thought too much about racial outcomes.
Last year, a federal district court struck down the admissions policy as racially discriminatory. But in May, a federal appeals court reversed that decision and upheld the policy. The case is not over: A petition to the Supreme Court is expected to come soon, and many observers expect the court to take up the case.
If the plaintiffs in the Thomas Jefferson case — or in any of three similar lawsuits their lawyers have filed elsewhere — were to prevail, it would jeopardize a fundamental distinction embedded in Supreme Court doctrine: the difference between the means policymakers use and their ends.
When the government (or an entity that receives federal funds, like a school) treats individuals differently based on race, it must overcome a demanding legal test called strict scrutiny. Until last month, the Supreme Court had, within limits and begrudgingly, said that university-level affirmative action passed this test. Going forward, it will be nearly impossible for affirmative action policies to do so.
But the Supreme Court has long condoned policies that don’t entail classifying individuals by race, even if the goal of the policy is race-conscious. For example, incorporating geographic or socioeconomic preferences into a college’s admissions policy has never been considered constitutionally suspect, even if the college is doing it in part to promote racial diversity. Traditionally, when a policy’s language and implementation are race-neutral but its goals are race-conscious, courts apply strict scrutiny only when those goals are invidious — promoting racial disparity rather than fighting it.
Eliminating the distinction between means and ends would threaten an enormous range of policies. Consider, to pick just one example, No Child Left Behind, President George W. Bush’s signature education reform. The educational standards it set drew no racial distinctions. Indeed, uniform standards for all students were the law’s hallmark. But concerns about race gaps in educational achievement were central to arguments for the law, and the law’s accountability standards required assessments of schools’ progress in closing those gaps (a requirement that remains in the successor legislation in effect today).
To be sure, many people disagree about the merits and effectiveness of this kind of policy. There’s ample room for public debate. But it is — and as I have argued elsewhere, should remain — constitutionally permissible to consider race-related effects when engaging in that debate.
You might take some comfort in knowing that, should the Supreme Court side with the plaintiffs in the Thomas Jefferson case or a similar case, many litigation-savvy government actors would keep trying to lessen racial disparities — they just wouldn’t say that’s what they were doing. They would talk about, for instance, the need to address socioeconomic inequality in education — a serious concern in itself, of course — while keeping silent about any potential effects on diversity.
But while lack of candor might insulate future policies from lawsuits, it would do nothing to save the countless existing policies that have already been advocated in terms of racial equality, diversity or inclusion. In any case, a healthy democracy requires open debate. In a country shaped throughout its history by racial discrimination and disparity, excluding race from policy debate would impoverish our discourse and threaten to delegitimize the political process.
Last month’s affirmative action decision underscored the current Supreme Court’s antipathy to the use of racial classifications. But it didn’t give a clear signal whether the court will extend that antipathy to pro-diversity policies that don’t classify by race. Given that discussion of race-neutral alternatives to affirmative action played an outsize role in the oral arguments, it’s surprising that the majority opinion says virtually nothing about them.
Although that near-silence is hard to interpret, it may suggest a deliberate choice to set the matter aside for now. The majority opinion does refer to the universities’ diversity-related educational interests as “commendable goals,” which is somewhat heartening, but it falls short of the positive discussion of race-neutral alternatives that some of the court’s past decisions have included.
So we will have to wait and see how far the Supreme Court wants to go down the colorblindness path. In the meantime, the appellate decision in the Thomas Jefferson case remains correctly decided — nothing in the Supreme Court’s decision changes that. The lower court’s decision points the way for other courts to follow a less radical path — if the Supreme Court doesn’t reverse it in the years to come. But that’s a big if.
Sonja B. Starr (@SonjaStarr) is a law professor at the University of Chicago.
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