The Supreme Court’s long expected ruling on the Harvard and University of North Carolina race-based admissions practices was just released. A 6-3 vote, along predictable lines, backs up Chief Justice John Roberts’s very strong opinion, which relies on the equal protection clause of the 14th Amendment. I’m still making my way through the concurrences (Thomas decided to write a long concurrence giving the originalist ground for the ruling, as well as a history of the 14th Amendment, sensibly thinking that a lot of people today—and perhaps the Democratic appointees to the Court, don’t really know it very well) and dissents. Stay tuned.
Key quote from Roberts: “Eliminating racial discrimination means eliminating all of it.” From here he goes on to an extensive critique of why Justice Powell’s famous dodge in Bakke—the open door for the “diversity” racket—was pernicious, and so I was on guard for any tiny opening for wiggle room on the part of college admissions. In the last paragraph of the syllabus there appears to be a bit of wiggle room:
Because Harvard’s and UNC’s admissions programs lack sufficiently focused and measurable objectives warranting the use of race,unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points, those admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. At the same time, nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university. Many universities have for too long wrongly concluded thatthe touchstone of an individual’s identity is not challenges bested,skills built, or lessons learned, but the color of their skin. This Nation’s constitutional history does not tolerate that choice.
But then in the full opinion, Roberts appears to close the door on this dodge, rather forcefully:
At the same time, as all parties agree, nothing in this opinion should be construed as prohibiting universitiesfrom considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today. (A dissenting opinion is generally not the best source of legal advice on how to comply with the majority opinion.) “[W]hat cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows,” and the prohibition against racial discrimination is “levelled at the thing, not the name.”
Needless to say we’ll be breaking down the opinion in detail in the next podcast, which we may try to post up a day early this week. Meanwhile, I am actually at Berkeley Law all day today for a conference, and I’ll be on the lookout for the rending of garments.
I’ll update as I get through more of the opinions.
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