The Supreme Court’s Color Oblivious Constitution and the Road not Taken

Image of a court.

Image by Jesse Collins.

The Supreme Court’s Students for Fair Admissions, Inc. v. President and Fellows of Harvard College struck down affirmative action programs at both Harvard and the University of North Carolina in the name of the “color-blind” Constitution. Perhaps it would be better to describe the Court’s Orwellian fantasy doctrine as “color oblivious.”

The decision should have surprised no one and it well-telegraphed not just from its recent decisions chipping away at racial considerations when it came to college admissions, but perhaps from the very start of when the Supreme ever looked at the issue of affirmative action.

W.E.B. DuBois once proclaimed that the problem of color-line would be the problem of the twentieth century. Yet the Supreme Court’s affirmative action jurisprudence has never really embraced it or understood the reality of American politics both historically and today. Whether it was its 1857 Dred Scott v. Sanford which ruled that slaves were property and not persons, or the 1896 Plessy v. Ferguson declaring separate but equal as an acceptable constitutional doctrine, the Court has more often than not failed to look beyond formal legal doctrines and see the reality of race in America.

The reality is of an American society that remains racist. Our constitution was born of slavery and race. We fought a Civil War and a civil rights movement over it. Yet the badges of slavery persist in all of our institutions including criminal justice, housing and education. Affirmative action was never meant to be the sole tool to abate race, but instead one of several. It recognized that there was a difference between the use of race for discriminatory as opposed to remedial reasons and that it was an illusion to say that simply passing law making discrimination illegal would make it disappear.

Affirmative action at the college admissions level recognized the failures of our society in confronting race. Perhaps, just perhaps if we truly had integrated and quality schools for all and all students were free to pursue their excellence, affirmative action at the college level would not be necessary. But we do not live in that world. We do not in part because of the Court’s own decisions such as San Antonio Independent School District v. Rodriguez declaring that there is no constitutional right to education and that discrimination based on wealth is not illegal, or Keyes v. School District No. 1, Denver where the Court imposed limits on cross-district integration and thereby accelerated suburban white flight. Both cases were from 1973—undermining civil rights and equal educational opportunities almost from the start.

The 1978 Bakke v. University of California was the Court’s first college affirmative action case. It struck down the racial quota system in place, ruling that race could only be one of several factors when making admission decisions. The Court also declared that the only constitutional justification for racial considerations was to promote diversity in the classroom. Yet Bakke ignored the fact that there was a small cluster of special admission’s slots given to the dean, presumably offered as legacy slots or for rich donors.

Consistently the Court has ignored the privileged position of legacy admissions at Harvard and other schools. It has ignored the way rich donors can buy admissions for their children, as we say in the stories from a few years ago where individuals such as actress Lori Loughlin paid $500,000 to buy admission for her daughters. to USC. The Court seems oblivious to how some private, prep, and boarding schools give some applicants a special advantage to get into elite schools such as Harvard and Yale. Such schools, one might note, that have produced the majority of Supreme Court Justices.

The Court in Bakke accepted the argument that racial considerations to help people of color were a form of racial discrimination. That assumption prevailed in all of the Court’s college affirmative action cases, as well as in its decisions, especially under the Rehnquist and then Roberts Courts, when it came to employment and redistricting. Somehow just declare the Constitution and the law racially neutral or blind and it will go away.

Twenty years ago in Grutter v. Bollinger the Court signaled its impatience with affirmative action when Justice O’Connor declared that she hoped in twenty-five years affirmative action would no longer be necessary. In the Fair Admissions, Inc case decided on June 29, the patience ended. In part because Harvard and UNC could not say when they would no longer need to consider race to overcome discrimination, that is why the Court had to end it. In effect, despite the fact that the Court in its decision discussed the history of race in America it was simply time to end it because it discriminated against white Caucasians (such as those individuals who brought the case) and because it just had to come to an end.

The Supreme Court could have taken a different road in this case. It could have declared that the group bringing the case had no standing to sue because it had not suffered harm. The Court could have said the Harvard plan was discriminatory toward Asian-Americans and ordered them to fix it without striking down all considerations of race. But by the time we got to this case the Court had already gone down the wrong path. It ignored how its own decisions have contributed to racial discrimination and the unequal educational opportunities and how they have undermined societal institutions to address racism. In effect, the color obliviousness of Fair Admissions, Inc. v. President and Fellows of Harvard College was a long time coming.

David Schultz, Professor in the Department of Political Science at Hamline University and editor of the Journal of Public Affairs Education (JPAE). His latest book is Presidential Swing States:  Why Only Ten Matter.