Facially neutral, racially biased

Editors’ note: The following essay forms part of “Affirmative action & the law: a symposium,” a special section exploring topics to be addressed in the current Supreme Court session. Roger Kimball’s introduction can be read here.

The Supreme Court will soon hear arguments in two of the most important cases involving racial preferences in recent memory.¹ Both involve race-based admissions programs that discriminate against Asian American applicants at two of the best universities in the world: Harvard College and the University of North Carolina. The Court’s decisions will affect more than just the admissions policies at Harvard and unc. And yet most commentators—both those who support race-based admissions and those who oppose them—incorrectly assume that Supreme Court decisions against Harvard and unc will end racial preferences once and for all. Instead, the unreasoning commitment of schools and college administrators to the ideal of diversity presages massive resistance to any unfavorable decisions and decades of trench warfare in the courts.

Decisions rebuking the universities’ use of race will, as a matter of constitutional law, mark the end of the Supreme Court’s misbegotten acceptance of express racial preferences in higher education. The Court has steadily banned racial discrimination in almost every other part of public life. In Brown v. Board of Education (1954), the Court dismantled the pernicious government policy of operating segregated schools. It recited the arguments from the advocates for Oliver Brown, who pressed the “fundamental contention” that “no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.” In Palmore v. Sidoti (1984), the Court held that the equal-protection clause banned the consideration of race in child-custody decisions. It reasoned that racial classifications were pernicious because they prioritize the collective over the individual: “[T]he race, not the person, dictates the category.” Next, the Court invalidated the use of race in government employment decisions in Wygant v. Jackson Board of Education (1986). It rejected the notion that an interest in remedying societal discrimination was sufficient to justify racial classifications. As the plurality noted, a contrary holding would have allowed government to use race to adopt “remedies that are ageless in their reach into the past, and timeless in their ability to affect the future.”

The Court reasoned that racial classifications were pernicious because they prioritize the collective over the individual.

In Croson v. City of Richmond (1989), the Court spelled out that the Fourteenth Amendment prohibits state and local governments from engaging in racial discrimination in government contracting. Justice Sandra Day O’Connor’s plurality opinion explained that broadly allowing such race-based measures overlooks the “danger that a racial classification is merely the product of unthinking stereotypes or a form of racial politics.” The Court then made it crystal clear that this bar also applied to the federal government in Adarand Constructors v. Pena (1995). As Justice Antonin Scalia remarked in his concurring opinion, “In the eyes of government, we are just one race here. It is American.” In Trump v. Hawaii (2018), the Court even overruled the infamous Korematsu decision, which had permitted the government to intern Japanese American citizens during World War II.

These cases follow from the principle enunciated in Justice John Marshall Harlan’s dissent in Plessy v. Ferguson (1896): “Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.” The sponsors of the Fourteenth Amendment similarly believed that it would protect not equality of outcomes among groups, but equality of rights among individuals. As Senator Jacob Howard, in a speech introducing the Fourteenth Amendment to the Senate in 1866, put it: the amendment “establishes equality before the law, and it gives to the humblest, the poorest, the most despised of the race the same rights and the same protection before the law as it gives to the most powerful, the most wealthy, or the most haughty.” As Justice Scalia explained nearly thirteen decades later, racial preferences are “alien to the Constitution’s focus upon the individual” and thus incompatible with the Constitution’s promise of equal rights.

A sham rationale

The campaign against racial discrimination began with schools in Brown, and now it has come full circle. Only in 2007 did the Court declare, in Parents Involved in Community Schools v. Seattle School District No. 1, that school administrators could not use racial classifications in K–12 admissions. In a now famous line, Chief Justice John Roberts stated that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

But a single exception to the Constitution’s colorblindness principle remains. In Grutter v. Bollinger (2003), the Supreme Court upheld the University of Michigan Law School’s use of race as a factor in admissions. The justices accepted the claim of university administrators that the use of race furthered an interest in diversity of thought in higher education. As the defendant Lee Bollinger subsequently admitted, this diversity rationale was a sham from the start. Bollinger and virtually every other notable supporter of affirmative action in education premise their support on the belief that racial preferences are necessary to remedy past societal discrimination—a rationale that could not be advanced because it had been roundly rejected by the Supreme Court.

Despite its disreputable origins, this diversity rationale continues to wreak havoc in higher education today. The Supreme Court in Grutter countenanced the time-limited use of race in college admissions and hoped that such preferences would last no more than twenty-five years. Yet almost twenty-five years have passed, and there is still no end in sight for racial preferences in admissions at Harvard, the University of North Carolina, and numerous universities across the country.

This diversity rationale continues to wreak havoc in higher education today.

The two pending lawsuits by Students for Fair Admissions present the Court with the opportunity to close this unconstitutional exception to the principle of colorblindness. But history suggests that even clear decisions in favor of the students in those cases, as with Brown nearly seventy years ago, would only be, to paraphrase Churchill, not the beginning of the end, but the end of the beginning. Parents and students—who overwhelmingly reject racial preferences—will not be able to eliminate the use of skin color in one fell swoop, but only after a series of cases across the nation.

Striking down the admissions practices at Harvard and unc is the easy part. Both schools admit that they use overt racial preferences. Harvard’s opening brief before the Supreme Court concedes that its admissions officers use race as a plus factor in what it calls a “holistic review” of each applicant’s file. unc’s brief similarly acknowledges that an applicant’s race is sometimes determinative. The undisputed factual record in both cases confirms that racial preferences are affecting admissions decisions. At Harvard, Asian American applicants have lower acceptance rates than white students at nearly every academic decile. An Asian American applicant in the fourth-lowest decile has less than a 1 percent chance of being admitted. But an African American applicant in the fourth-lowest decile has a 12.8 percent chance of being admitted. African Americans in that fourth-lowest decile also have the same chance of admission as Asian Americans in the top decile of applicants, judged on scores and grades (12.7 percent). The numbers at unc are equally striking. Out-of-state applicants in the fifth-highest decile have less than a 5 percent chance of admission if they are Asian American, but a 46 percent chance of admission if they are African American. Compared to white applicants, Asian American applicants fare worse in eight of the ten deciles at both unc and Harvard.

Courts routinely strike down racial discrimination of this kind. The equal-protection clause prohibits public institutions like unc from openly discriminating on the basis of race. Title VI of the Civil Rights Act of 1964 bars institutions that receive federal funds (like Harvard and unc) from doing the same. University administrators can only consider applicants’ skin color thanks to the Court’s unjustified exception to the prohibition on racial discrimination for university admissions. If North Carolina tried to use similar racial preferences in hiring public employees or handing out grants, the Fourteenth Amendment would stand in the way. If Harvard considered skin color to make hiring and tenure decisions for its faculty, the Civil Rights Act of 1964 would bar it. It would not matter whether these universities tried to favor whites, as they once did, or “underrepresented minorities,” as they do now. In any activity other than admissions, it is illegal for colleges and universities even now to use race as a factor. And that exception may no longer exist after the Court issues its decisions in Students for Fair Admissions v. Harvard and Students for Fair Admissions v. UNC.

A history of resistance

Even if the Court strikes down the formal use of race in college admissions, the campaign to enforce the Constitution’s colorblindness principle will still have work to do. The history of resistance to Brown v. Board of Education suggests that universities will respond to a loss at the Supreme Court not by abandoning their goal of meeting some ideal racial balance, but by pursuing the same end through less obvious means. Over a century of cases show that once a government begins to use racial classifications, it is virtually impossible for the government to end the practice absent intervention by federal courts.

Courts routinely strike down racial discrimination of this kind.

Perhaps the earliest example came in the wake of the Reconstruction amendments. At issue in Yick Wo v. Hopkins (1886) was that San Francisco had made it a crime to operate a public laundry without permission from the county board of supervisors. The Court looked beyond the facially neutral façade of those ordinances to ask whether invidious discrimination was afoot. The supervisors had rejected applications from two hundred Chinese laundry owners—but permitted eighty non-Chinese persons to operate the same business under similar conditions. Shortly after Congress enacted the Fourteenth Amendment, the Supreme Court confirmed that it protected individuals against both overt and covert forms of racial discrimination.

College presidents have long used skin color in admissions to advance the racial stereotypes of their day. Roughly a century ago, the Harvard president A. Lawrence Lowell expressed concern that the increasing number of Jewish students would ruin the university. The admissions office at Harvard embarked on an effort to limit the number of Jewish students—not by imposing an explicit quota but through a “holistic” process purportedly designed to admit students of suitable “character and fitness,” which President Lowell believed was lacking in Jewish students. An admissions subcommittee used a student’s name and place of birth, as well as information about the student’s parents, to speculate as to whether the applicant was Jewish. The subcommittee would go as far as to give each applicant a specific rating—J1, J2, or J3—connoting whether the evidence pointed “conclusively to the fact that the student was Jewish,” a “preponderance of evidence” suggested that the student was Jewish, or “the evidence suggested the possibility that the student might be Jewish.” Only as Americans learned of the horrors of the Holocaust after World War II did Harvard drop its blatant discrimination against Jews.

Covert discrimination again reared its ugly head after Brown. After the Court ordered the end of racial segregation in public schools, southern states launched a campaign of “massive resistance” in response. Some school districts, when confronted with an order to integrate, simply shuttered instead. In 1956, Virginia’s state government adopted massive resistance as state policy, closing down schools in Norfolk, Charlottesville, and elsewhere before courts intervened.

Schools were hardly the only place where states refused to welcome all Americans regardless of race. Towns that operated segregated swimming pools chose to shut them down instead of opening them to blacks. Some states resorted to a variety of requirements and tests—such as the infamous poll taxes—specifically designed to prevent African Americans from voting. Their efforts were largely successful. Before the Voting Rights Act of 1965 helped end these practices, only 6.4 percent of eligible African Americans in Mississippi were registered to vote. That number increased to 60 percent just two years after the passage of the vra.

Covert discrimination again reared its ugly head after Brown.

The Supreme Court responded to race-based brinkmanship by supplying a framework for dealing with covert discrimination. In Village of Arlington Heights v. Metropolitan Housing Development Corporation (1977), the Court explained that determining “whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” It provided a series of guideposts by which lower courts can ascertain whether government action has been driven by a discriminatory purpose and thus violates the Fourteenth Amendment.

Arlington Heights hardly marked the end of attempts to bypass the Fourteenth Amendment. In Hopwood v. Texas (1996), the U.S. Court of Appeals for the Fifth Circuit invalidated a program calling for express racial preferences in admissions to the University of Texas. Yet rather than abandoning the project of admitting a “racially balanced” class, Texas simply moved to obtain that pernicious goal through facially neutral proxies for race. Texas enacted the “Top Ten Percent Plan,” which guarantees admissions to students who finish in the top ten percent of their high-school class, regardless of the quality of their school or their performance on standardized tests. As Justice Ruth Bader Ginsburg later observed, “only an ostrich” could regard the plan as “race unconscious.” Scholars who disagree with Ginsburg on racial preferences in admissions agree with her on this point. Brian Fitzpatrick and Ilya Somin have aptly demonstrated that the Top Ten Percent Plan would flunk the Arlington Heights test if it were ever challenged in court. But because virtually all of the litigation has revolved around express racial considerations in admissions, no court has had the occasion to consider whether the plan still violates the Fourteenth Amendment.

The challenges ahead

The Top Ten Percent Plan provides a blueprint for universities looking ahead to a world—after the Court likely strikes down racial preferences in Students for Fair Admissions—in which they can no longer openly use skin color in their admission decisions. These schools will experiment with policies that sacrifice individual achievement and academic standards for the sake of the preferred racial balance of the day. For example, several schools no longer intend to consider standardized test scores at all—a move that may have the unintended consequence of emphasizing other factors, such as summer internships, that will benefit students from wealthier families. Although universities routinely boast of their “holistic” admissions policies, such policies repeal objective and transparent standards. University administrators are willing to replace merit with a boundless bureaucratic discretion that allows admissions officers to flout the colorblind mandates of federal law without leaving a paper trail.

We can see a preview of the fights to come in K–12 education. Confronted with plain prohibitions on express racial classifications in cases such as Brown and Parents Involved, local school boards have already resorted to covert racial discrimination under the cover of holistic admissions for competitive magnet schools. Local school boards and elected officials were also responsible for the massive resistance to Brown seventy years ago. Then as now, government officials are all too prepared to judge individual children based on their skin color to achieve their enlightened vision of social justice. They are all too willing to subvert the commands of the Constitution and federal law in favor of their goal of constructing what they believe to be the optimal racial balance in the nation’s schools.

We can see a preview of the fights to come in K–12 education.

Parents seeking a better education for their children have stood up for their civil rights in federal courts. One case involves admissions to the highest-ranked public school in the United States: Thomas Jefferson High School for Science and Technology (“TJ”) in Alexandria, Virginia. TJ specializes in the stem fields and provides a pathway for highly gifted students to learn with highly gifted peers. The school has students of over thirty different nationalities and provides a top education for many recent immigrants or their children.

But that was not good enough for the Fairfax County School Board, which thought the student body had too many Asians and not enough blacks and Hispanics. Before 2020, the admissions process revolved around a famously demanding set of standardized tests designed to ensure that those who enroll at TJ will thrive in the school’s highly competitive environment. No longer. In 2020, the school board eschewed the tests in favor of a new system that reserves roughly four hundred spots for those in the top 1.5 percent of each Fairfax County middle school and roughly a hundred more for a “holistic” admissions process that gives preference to students from underrepresented middle schools. Because Asian American students concentrate in a handful of Fairfax County middle schools, the changes led to a sharp decrease in Asian American enrollment, from 73 percent to 54 percent.

None of this was surprising to school-board members; it was the very purpose of their plan. The lawsuit uncovered damning statements. Private text messages from board members revealed there had been an anti-Asian sentiment underlying the admissions changes, which the superintendent made obvious with “racist” and “demeaning” references to “pay to play” (referring to test prep for the old TJ admissions exam). One board member further acknowledged these racial concerns when she texted that one of the superintendent’s proposals would “whiten our schools and kick [out] Asians.” With convincing evidence of both a discriminatory purpose and a discriminatory effect, a federal district court found that Fairfax County’s attempt at racially balancing TJ was unconstitutional under the Fourteenth Amendment. The school board has appealed the district court’s decision, which appears likely to reach the Supreme Court.

Virginia is no outlier. Montgomery County, Maryland, also attempted a racial re-balancing of the student body at its four selective magnet middle schools with facially neutral—but racially motivated—proxies. In 2014, Asian American students—many of whose parents do not have the means to afford private schools—occupied nearly half of the seats at the magnet schools. Unsatisfied with the results of objective, merit-based testing, the school district hired a consulting firm to recommend ways to make the district’s schools more “equitable.” Under the school district’s new admissions process, applicants to selective magnet programs suffer a penalty if they have attended schools with other high-performing students. This “peer group” requirement punished Asian American students who would have tested into the magnet middle schools under the previous standard. A federal court in Maryland issued a favorable preliminary decision for the students. The court held that statements of board members reflected a discriminatory purpose and that there was “no real dispute” that the revised admissions scheme “disproportionately affected Asian American students.” After the school district altered its admissions process during the covid-19 pandemic, the court dismissed the case, reasoning that the discriminatory purpose that prompted the previous admissions program couldn’t be imputed to the new one. An appeal will likely follow.

Nearly half of the students in a recent class at Stuyvesant qualified for free or reduced-price lunch.

The final example concerns New York City’s efforts at racially balancing the student body at its world-famous specialized high schools. These schools, which include Stuyvesant, Bronx Science, and Brooklyn Tech, have provided many New Yorkers with paths to better futures. Their students’ accomplishments are all the more impressive given that many are immigrants or come from poor backgrounds (or both). Nearly half of the students in a recent class at Stuyvesant, for instance, qualified for free or reduced-price lunch. The admissions process at New York’s specialized schools has long been governed by a student’s score on an open and objective standardized test.

City officials such as Mayor Bill de Blasio lamented the fact that the demographics in specialized schools did not reflect the demographics of the general population. Like Fairfax and Montgomery counties, New York attempted to achieve its desired racial balance with facially neutral proxies for race. The city did so by revising its “Discovery Program,” which originally offered economically disadvantaged students scoring just below the exam cut-off an opportunity to attend specialized schools. New York drastically redefined the definition of “economic disadvantage” in a way that gerrymandered out low-income middle schools with a significant number of Asian American students from the Discovery Program. Christa McAuliffe Intermediate School is a prime example. The school was considered “economically disadvantaged” because roughly two-thirds of its students are in poverty. But under the revised definition of “economic disadvantage,” McAuliffe’s students—many of whom are low-income Asian American students—no longer qualified for admission under the Discovery Program. Asian American students whose parents were not wealthy enough to send them to private school could no longer access specialized schools under a program designed for students with precisely their socioeconomic status. The case is pending at the district court.

The changes to the admissions programs in Virginia, Maryland, and New York follow a pattern. In an effort to match the demographics of the schools with that of the surrounding population, the new admissions programs employ facially neutral proxies to discriminate on the basis of race. The new admissions process in these cases intentionally deprives high-performing, and often low-income, Asian American students from opportunities that they have earned through academic performance.

Administrators no doubt claimed that they were advancing social justice. 

These changes not only run afoul of the Constitution’s prohibition on racial discrimination. They are also unjust. The schools’ fixation on “diversity” today may be superficially different from calls for segregated schools decades ago. But both rest on the immoral notion that students should be treated as members of racial groups. In both cases, the administrators no doubt claimed that they were advancing social justice. Yet the equal-protection clause guarantees each American the right to be treated as an individual and according to his or her aspirations and achievements. Those who fixate on diversity willingly sacrifice individual achievement for proportional group representation.

Proponents of diversity impose the racial stereotypes that they purport to abhor in other contexts. Some contend that racial diversity is necessary to ensure ideological diversity in education. That claim ignores many problems. Perhaps worst of all, it incorrectly presumes that individuals share similar beliefs just because the government has classified them in the same racial group.

The means that schools use to achieve diversity are also problematic. As experience has taught, when once-competitive schools drop academic standards for admissions, they often drop academic standards in class too. Lowering academic standards to promote diversity deprives hardworking students of educational opportunities. To be clear, the victims of diversity are not just those who have earned high test scores. Even those who purportedly benefit from the lowering of academic standards are harmed in the long run. Initiatives to eliminate tests, grades, and merit all paper over real problems and divert resources from real measures that can prepare students for an academically rigorous environment.

As Justice Clarence Thomas observed in a recent opinion, racial preferences demean us all. For civil rights, the correct path forward is one that focuses not on victimhood but empowerment. The ends that the path leads to is not equality of outcomes among groups, but equality of rights among individuals.

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This article originally appeared in The New Criterion, Volume 41 Number 2, on page 24
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https://newcriterion.com/issues/2022/10/facially-neutral-racially-biased