The Way They Say It MattersThe Supreme Court has a chance to make a strong defense of equality under the law in its upcoming affirmative action rulings.
Frank DeVito
May 31, 2023
It’s springtime, so the U.S. Supreme Court is coming to the end of its term and releasing long-awaited decisions. Among the most interesting and consequential decisions should be the two affirmative action cases, in which Students for Fair Admissions, Inc. filed suit against both the University of North Carolina and Harvard. The cases are handled slightly differently because UNC is a public university while Harvard is a private college; nevertheless, because Harvard takes federal funding, the legal arguments are quite similar: The plaintiff argues that any race-conscious admissions policy discriminates against students from non-favored groups and violates both the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964.
Before getting into the details of these cases and the likely outcomes, it is worth remembering that courts do more than issue ultimate legal rulings. Especially in the case of the Supreme Court, the entire opinion, not just the raw outcome, sets precedent that directs future court rulings along with the activities of legislatures, rule-making agencies, and private entities bound by these rules. It isn’t merely a matter of whether the Court comes down on the correct side of the issue. It matters greatly how it articulates its reasoning.
In anticipating the Court’s opinion in the affirmative action cases, then, there are two distinct questions. The first is whether the Court will end the affirmative action regime in American schools and beyond. Assuming the answer to the first question is yes, the second question is how the Court will speak in issuing its ruling. As we said, the answer to the second question matters.
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The present cases on which the Court will rule in the coming weeks may very well overrule the affirmative action regime created by Bakke and Grutter. This would be the right outcome. It is a stain on our nation’s legal tradition that, after a century-long legal battle to end institutionalized racism—from slavery to Jim Crow—our Supreme Court has upheld the constitutionality of using race-based discrimination in the college admissions process. Affirmative action indeed belongs in the dustbin of history.
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In the Students for Fair Admissions cases, the Court could softly affirm that, given the serious need for racial diversity, affirmative action was appropriate to serve the compelling interest of diversifying campuses for a time, but enough racial diversity has probably been achieved (even five years earlier than Justice O’Connor had anticipated). Since affirmative action no longer serves a compelling interest, it is no longer needed.
Or the Court could defend the Equal Protection Clause and the purpose of the Civil Rights Act in full force. It could proclaim that the struggle to end slavery and establish the Fourteenth Amendment, culminating in the Civil Rights Act, was precisely a fight to enshrine in our law that it is absolutely impermissible for people to be discriminated against on the basis of race. Affirmative action undermines these laws and this principle, and therefore race-based discrimination is blatantly unconstitutional and cannot be tolerated in any form.
Bakke and Grutter may have been well-intentioned, but the Constitution does not allow people to be denied the equal protection of the laws because of their race. Period. Therefore, race-based affirmative action schemes of any kind are unlawful, and American institutions of all kinds must be content to judge their applicants, not on the color of their skin, but the content of their character.
This second option is not judicial overreach, but a full, proper, contextual explanation of the law. The job of the conservative judge is not to invent rules that go beyond the law in the case, but sometimes activist overreach needs to be corrected by a judicial opinion that boldly and completely explains and reverses an error. Affirmative action is such a case.
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Source:
https://www.theamericanconservative.com/the-way-they-say-it-matters/
