A ‘Color-Blind Constitution’ at Last?

In the 1978 case Regents of the University of California v. Bakke, the Supreme Court took up the question of whether “reverse discrimination”—i.e., a government policy favoring members of disadvantaged minority groups that burdens individuals who are members of the white majority—violated the 14th Amendment’s equal protection clause. Allan Bakke was a white male who twice had been denied admission to the UC Davis Medical School. 

UC Davis had implemented an affirmative action program designed to mitigate the generalized effects of past discrimination against minorities, whereby 16 of the 100 admission slots for first year medical students were set aside under a special admissions program only for members of specified minorities (blacks, Asians, and Chicanos). White students could compete for only 84 of the 100 open slots, while members of the favored minority groups could compete for all 100. Under the regular admissions program, students with a GPA of less than 2.5 were summarily rejected, while minority applicants under the special admissions program did not have to meet the 2.5 GPA to be considered.

Bakke’s contention was that he would have been admitted to the medical school if not for the special admissions program, as his “benchmark” score (a combination of such factors as overall GPA, science courses GPA, MCAT scores, letters of recommendation, extracurricular activities, and other biographical data) was higher than minority applicants admitted under the special admissions program. 

Bakke sued in California state court, where his suit was ultimately successful on appeal, both in requiring his admittance to UC Davis Medical School and in finding that the quota system employed by the university violated the California Constitution, Title VI of the Civil Rights Act of 1964, and the equal protection clause of the 14th Amendment. 

UC Davis appealed to the U.S. Supreme Court, requesting that the court overturn the California Supreme Court’s decision to admit Bakke and invalidating UC Davis’ special admissions program. In a ruling that has subsequently had dire consequences for higher education (more on that in a moment), the court issued a split, complicated, and muddled decision. By a 5-4 decision, Bakke was ordered admitted and UC Davis’ special admissions program was invalidated under Title VI and the 14th Amendment’s equal protection clause. 

The Diversity Rationale

But by a different 5-4 combination of justices, the court determined that race could be taken into account as long as it was only one factor among many, because the university had a compelling state interest in promoting a “diverse” student body.  

Justice Lewis Powell wrote the opinion for the court in Bakke, agreeing with four justices that the UC Davis special admissions program for minorities had violated Title VI of the Civil Rights Act of 1964; therefore ruling that Bakke be admitted to the medical school and that the special admissions program be invalidated because it mandated racial quotas. 

Powell’s decision rejected the argument that racial discrimination directed against members of the white “majority” cannot be suspect if its purpose was benign, i.e., designed to undo the past effects of discrimination against minority groups. Powell concluded, rightly, that there is no principled basis by which the court could decide which groups would merit “heightened judicial solicitude” and which would not; in part because even the concept of racial minorities and majorities was amorphous and constantly shifting. 

Unfortunately, Powell did not let the matter rest there. While he was not willing to join with the liberal members of the court who insisted that race could and indeed should be a factor in university admissions to undo the effects of past discrimination, he was willing to entertain the argument that race could be one factor among many. 

Powell had argued convincingly that the special admissions program involved racial and ethnic classifications that were inherently suspect and which called for the most “exacting judicial scrutiny.” According to Powell, however, “the goal of achieving a diverse student body is sufficiently compelling to justify consideration of race in admissions decisions under some circumstances.” 

In Bakke’s case, Powell believed that UC Davis’ special admissions program unconstitutionally denied him consideration based solely upon his race and was “unnecessary to the achievement of this compelling goal (of achieving a diverse student body) and therefore invalid under the Equal Protection Clause.” 

Powell was able to convince the four justices—who would have preferred a court ruling that benign racial classifications benefitting members of “discrete and insular minorities” were constitutional—to join the part of his opinion that, under the First Amendment’s implied guarantee of academic freedom, race could be considered one factor among many as a way for universities to achieve a diverse student body. Under the concept of academic freedom a university has great latitude, in the words of Justice Felix Frankfurter, “to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.”  

According to Powell, UC Davis’ special admissions system went too far because it set specific quotas for admissions available only to certain applicants solely on the basis of their race. It was not only possible, however, but desirable that universities should implement admissions programs that considered race among other factors. While race conscious quotas might violate the equal protection clause, considerations of race to enhance the diversity of the student body clearly satisfied the judicial test that universities demonstrate a compelling state interest: “The diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.” 

Powell’s consummate example of a university that had implemented just such a holistic admissions process was Harvard, which had expanded its “concept of diversity to include students from disadvantaged economic, race and ethnic groups.” Powell was so impressed by Harvard’s commitment to diversity, in fact, that he attached an appendix authored by the dean of admissions describing Harvard’s admissions process in detail. 

Harvard’s admission program, according to the appendix, is based upon the fact that it receives many more highly qualified and deserving applicants to its freshman class than it can admit. For at least 30 years prior to the Bakke decision, Harvard’s admissions decisions had been based upon criteria other than academic potential and merit. 

The belief has been that if scholarly excellence were the sole or even predominant criterion, Harvard College would lose a great deal of its vitality and intellectual excellence and that the quality of the educational experience offered to all students would suffer.

The description of Harvard’s admission program insists that while it does not consider specific quotas for the number of minority applicants it admits, it also recognizes that “there is some relationship between numbers and achieving the benefits to be derived from a diverse student body, and between numbers and providing a reasonable environment for those students admitted.” In an attempt to show that race or ethnicity is nevertheless not the sole driver of admission decisions, the report admits that “the critical criteria are often individual qualities or experience not dependent upon race but sometimes associated with it.” 

“Holistic” Discrimination

Fast forward almost a quarter of a century to the recent announcement that the Supreme Court will hear the case Students for Fair Admissions v. Harvard. At issue in the case is whether Harvard has systematically discriminated against Asian-American students by employing thinly-veiled race-conscious admission criteria that favor other, less-qualified minorities. Indeed, the central contention is that in its “holistic” view of applicants, Harvard admissions officials disproportionately award Asian Americans low “personality ratings,” which sounds an awful lot like the “individual qualities . . . not dependent upon race but sometimes associated with it.” 

Although Harvard has at least temporarily suspended the requirement that students submit an SAT score as a condition of applying, it had been the case that an Asian-American student had to score 450 points higher than a black applicant to be considered for admission.

The case against Harvard (and two other named universities, University of North Carolina at Chapel Hill and University of Texas at Austin) will be a difficult one to prove, even with a conservative majority on the court. The notion that admissions counselors are deciding against highly-qualified Asian-American applicants because of “low personality ratings” strikes neutral observers as the kind of racial discrimination that a color-blind Constitution forbids. 

But as Justice William Brennan rightly pointed out in the Bakke case, “no decision of this Court has ever adopted the proposition that the Constitution must be color-blind.” Indeed, in the sphere of higher education, the court’s subsequent rulings have never adopted a color-blind approach; rather, in 2003, the court ruled in Grutter v. Bollinger that the “educational benefits” of a racially diverse student body constitutes a compelling interest that allows a state university to consider race in admissions.  

This line of reasoning has had adverse effects far beyond the obvious damage to our understanding of the equal protection clause and the kind of state-sanctioned racial discrimination it was designed to eliminate. Universities quickly moved far beyond the notion that they should have latitude under the First Amendment to choose the composition of their student body. 

“Diversity” has become the sine qua non of most universities’ purposes; it pervades every aspect of university activity, from student admissions to staff and faculty hiring processes, to curriculum design. A 2021 Heritage Foundation study found that universities employed an average of 3.4 diversity, equity, and inclusion (DEI) professionals for every 100 tenured professors. DEI is now indisputably the reigning dogma on universities; anyone who challenges the DEI regime or any of its manifestations will find his career destroyed—at best. 

The court’s muddled decision in Bakke, a decision that could have simply declared that governmental policies promoting race consciousness in university admissions violated the equal protection clause of the 14th Amendment, became instead the vehicle for the embrace of “diversity” as an end in itself. Bakke paved the way for the triumph of the diversity, inclusion, and equity regime that has come to dominate not only higher education, but government, the corporate world, the media, and indeed all of the major institutions of American society. Bakke ushered in more than 30 years of obsessive, official preoccupation with creating victim classes and legitimizing discriminatory practices and policies designed to favor those protected classes under the anodyne goal of promoting diversity. 

In arguing for the constitutionality of benign racial discrimination in the dissenting part of his opinion in Bakke, Justice Harry Blackmun noted that “the cynical, of course, may say that under a program such as Harvard’s one may accomplish covertly what Davis concedes it does openly.” Even Justice Powell recognized the danger of race consciousness in college admissions: 

It has been suggested that an admissions program which considers race only as one factor is simply a subtle and more sophisticated—but no less effective—means of according racial preference than the Davis program.

Both Blackmun and Powell rejected such cynical assumptions, however, believing that it was not only possible but desirable to fashion policies that preferred racial and ethnic minorities in a way that would advance the cause of affirmative action; that the history of racial discrimination against certain minorities was so egregious that “affirmative” action was necessary to undo the effects of past discrimination. The court’s decision in Bakke thus institutionalized policies of race consciousness, not only in university admissions but across the entire university establishment. 

One wonders whether it would have been better if Powell had agreed with his “liberal” colleagues hook, line, and sinker. If the court had simply upheld quotas as a necessary but temporary remedy for past racial discrimination as the court subsequently claimed, the statute of limitations on such quotas may have expired more quickly than not. Americans’ fundamental sense of fairness may have fairly quickly rejected the idea that innocent members of an arbitrarily defined “majority” group were forced to bear the burden of preference shown to members of favored minority groups and demanded the end of race conscious quotas. 

Redefining racial discrimination as the promotion of diversity, which then came to include also the concepts of inclusion, and equity, necessarily diluted any principled objections to racial preferences. Blackmun’s concurring opinion, although it did not represent the decision of the court in Bakke, nevertheless became the controlling doctrine that legalized race-consciousness throughout the institutions of American society. The history of racial discrimination against blacks especially became the justification for race-conscious remedies to undo the effects of past discrimination. As Blackmun noted, 

I suspect that it would be impossible to arrange an affirmative-action program in a racially neutral way and have it successful. To ask that this be so is to demand the impossible. In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently.

This appalling and disingenuous statement has become the central motivating principle of the diversity, inclusion, and equity regime, and paved the way for the infusion of critical race theory (CRT) throughout American institutions. The belief that “affirmative” race conscious policies were necessary to undo the effects of past discrimination has slowly metasticized into the unassailable dogma that America is plagued by systematic racism advanced unconsciously by whites and any racial or ethnic groups which do not make up favored, victimized classes at any given moment (e.g., Asian-American applicants to Harvard). 

Powell had noted in Bakke that the Constitution simply did not support the idea that individuals who were no part of the injury could be made to suffer “otherwise impermissible burdens” in order to provide the remedy of enhancing “the societal standing of other ethnic groups.” But the critical race rationale excludes the possibility that individuals in the white majority are blameless and are therefore suffering any kind of impermissible burdens when they are made the victims of race conscious policies. Indeed, CRT demands these sacrifices as atonement for the sin of racism, of which all persons who are not members of officially sanctioned “marginalized” groups are guilty.

There is little evidence that either the ubiquitous allegiance to “diversity, inclusion, and equity” or the emerging prevalence of the abhorrent CRT doctrine have done anything to promote racial equality or the elimination of the vestiges of racial discrimination in society. 

There is ample evidence, in fact, that the opposite is true. Racial discrimination in all its forms is a terrible, ugly thing, but it is no less ugly—and no less of a violation of the Constitution—when it is directed against a white man or an Asian-American woman. When institutions take account of race—even for “benign” purposes—they necessarily diminish the focus on characteristics such as merit, aptitude, and innate talent that should truly matter. Race-conscious policies also perpetuate racial stereotypes, creating the perception that members of marginalized groups who succeed do so because of preferences accorded to them as members of those groups and not on the basis of their own merit.

The Supreme Court has an opportunity in Students for Fair Admissions v. Harvard to undo the damage caused by its muddled rationale in UC Regents v. Bakke, and to restore the proper understanding of the protections afforded by the 14th Amendment. The court could finally adopt Justice John Marshall Harlan’s understanding from his dissent in the infamous Plessy v. Ferguson ruling:

But in the view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. 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.

Such a ruling would truly advance the cause of racial justice in this country by delegitimizing the case for a caste society based upon race, and perhaps even begin undoing the destructive and inherently racist commitment to “diversity, inclusion, and equity.” 

Unfortunately, the history of the court’s rulings on race do not provide much reason for optimism, nor has the Supreme Court under Chief Justice Roberts shown the kind of courage that would be necessary to rule against the strong political forces that are arrayed against true racial equality. Let us hope we are mistaken in this assessment.

About Lucretia

“Lucretia” is the nom de plume of the co-host of Power Line's “Three Whisky Happy Hour” podcast on the Ricochet audio network.

Photo: Anik Rahman/NurPhoto

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