The Supreme Court’s recent decision to invalidate the affirmative action programs at Harvard and UNC-Chapel Hill may seem like the end of a long road. Throughout the Reagan administration and beyond, a Republican-appointed majority has steadily eroded the legal grounds for using race in allocating state benefits.
John Roberts, who once served in Reagan’s White House, staunchly criticized state affirmative action measures as “highly objectionable.” Now, with the Court’s latest opinion, what was once objectionable has become unconstitutional, driven solely by the changing composition of the bench.
While this ruling could be seen as the culmination of a conservative legal project that began in the 1980s, it also marks the beginning of a new chapter in America’s ongoing struggle with race.
With a conservative majority on the Court, there is a significant possibility that this ruling will be leveraged to undermine further efforts by the government and private firms to identify and address racial and ethnic disparities. There are two key ways in which this decision could signify the start, rather than the conclusion, of a chapter for the Court.
Firstly, it could steer the law toward a notably more conservative direction. The next logical step following this ruling would be invalidating “disparate impact” rules, which allow plaintiffs to demonstrate discrimination based on significant unexplained racial disparities.
Conservative justices have been targeting disparate impact provisions for over a decade, and this latest ruling against race-based college admissions gives them a potent weapon. Disregarding such provisions would make the law less favorable for those facing discrimination by individuals who are clever enough not to overtly display their unlawful motives.
Paradoxically, the Court’s race-blindness would facilitate easier discrimination by others, debunking Roberts’ simplistic adage that stopping discrimination on the basis of race entails not discriminating on the basis of race.
The second potential consequence, which could be even more far-reaching and disruptive, involves a case in Virginia challenging the admissions process of the prestigious Thomas Jefferson High School for Science and Technology.
The plaintiffs argue that the school engaged in “impermissible racial balancing” by seeking to create an integrated class without explicitly using race-conscious criteria. A ruling against racial justice in this context could cast doubt on numerous state and federal statutes enacted to address the burdens borne by minority groups.
For instance, protections for minority voters may come under scrutiny, potentially obstructing efforts to ensure equal access to the ballot. Moreover, critical policy issues that disproportionately affect racial minorities, such as the alarming racial gap in maternal mortality rates, could face hindrances in governmental response.
If the Court deems a vague category of race-conscious policies unconstitutional, it provides a legal framework for what has hitherto been a politically weaponized term.
This would incentivize partisan actors to label policies they disagree with as “social justice” or “woke,” rendering them vulnerable to invalidation. Consequently, Democrats could find their hands tied in advancing the interests of their diverse electoral coalition, while Republicans face no such constraints.
In summary, the Supreme Court’s recent affirmative action ruling represents not only the culmination of a conservative legal project but also marks the beginning of a new chapter with broader implications. It has the potential to push the law further toward conservatism, undermines disparate impact provisions, and jeopardize statutes aimed at addressing racial disparities.
Additionally, it could create a framework for challenging a wide range of race-conscious policies, hindering government responses to pressing issues faced by racial minority groups. This ruling sets the stage for partisan labeling and the restriction of policies favoring minorities, impeding progress toward racial justice.